JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 10, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): I call the meeting to order.

Today we're working on Bill C-3, an act respecting DNA identification and to make consequential amendments to the Criminal Code and other acts, and a review of the provisions of Bill C-104. That is on forensic DNA testing from the last Parliament.

We have a regular from the Criminal Lawyers' Association, Irwin Koziebrocki.

Welcome, Irwin.

Mr. Irwin Koziebrocki (Treasurer, Criminal Lawyers' Association): Good morning.

On behalf of the Criminal Lawyers' Association I want to thank you for inviting us to this committee hearing. It's always a privilege to be invited and to express the views of the Criminal Lawyers' Association with respect to various legislation.

I think we received this bill about a week and a half ago, right in the middle of my moving from one office to another. I've had an opportunity to review it and discuss it with several of my colleagues who are on the legislative committee of the Criminal Lawyers' Association. That committee deals with new legislation and makes representations to people like you.

I don't know if you've received copies, but some brief submissions were sent up yesterday. I have copies for you if you desire, but in the meantime I'll set out what I suggest is the position of the Criminal Lawyers' Association with respect to this legislation.

There are basically two main points to be made. First, the Criminal Lawyers' Association recognizes the need for a properly instituted process to bank DNA data as a means of protecting society. Second, the Criminal Lawyers' Association takes the position that the process adopted by Parliament should conform to the Canadian Charter of Rights and Freedoms, as well as protect the privacy of individuals. That position was taken in the Supreme Court of Canada in a recent decision. I think it's important to note that decision when dealing with this type of legislation and remember that when the Supreme Court of Canada dealt with the taking of samples, including hair samples, swabs, and blood samples, they described the taking of bodily samples as highly intrusive and as violating the sanctity of the body, which is essential to the maintenance of human dignity. It was the ultimate invasion of the accused's privacy. That's something I think you have to take into consideration and recall when dealing with this type of legislation.

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In reviewing this legislation I've attempted to briefly point out those areas, in the principles you set out in clause 4—which are laudable principles in this particular legislation—that may not conform to the Charter of Rights and Freedoms. There are several areas I would like to address briefly.

First is the issue of the retroactivity of the legislation. That's proposed sections 487.052 through to 487.055.

There is some concern, I would suggest, that this type of legislation ought not to be retroactive and as a result may offend the charter in that samples may well be used for the purposes of reviewing unsolved crimes and not for banking purposes exclusively. The result would in a sense be a form of self-incrimination, which could be contrary to the charter, as defined by the Supreme Court of Canada in Stillman.

These are conscripted types of evidence that are being asked to be provided for banking. If people who have not only been convicted and sentenced, but also in some cases—for example, proposed subsection 487.055(4)—have been released from custody on some form of parole, are being asked to come back and to provide samples, the only inference one can draw with respect to that is the police or the authorities will use those samples for the purposes of reviewing them with respect to outstanding crimes.

You then have the situation of someone who has not only gone through the process, but in some cases has completed his sentence or the jail portion of the sentence, being brought back for the purposes of a further review to see whether that person has committed other crimes.

I would suggest that is a situation in which the protections under the charter against invasion of privacy might well be violated and something you ought to consider in terms of this particular legislation.

I would also suggest that one thing that may well happen when this type of legislation is used retroactively is that it will become an unwritten condition of parole that you provide supposedly voluntary samples as a condition of your receiving parole.

That's not in the legislation, but it seems to me it's the type of thing a parole authority might easily apply as a condition of release, just as they say now that if someone wants to be released on a sexual offence charge, that person has to take certain courses. It may well be an appropriate consideration for a parole board, but one can see that this could go that much further when you have this type of legislation in place.

Another aspect that causes concern is retention of the information. One has to justify some of the differences you have in this legislation and why they exist. For example, under paragraphs 9(2)(a) and (b), why is there banking of persons who receive absolute and conditional discharges pursuant to section 730 of the Criminal Code?

When the court imposes an absolute or conditional discharge, first, it has not convicted the person—that's a finding of guilt—and it has, by the very fact of the disposition, found that person not to be a danger to the public. In those situations one has to consider why you would even consider banking that type of person. The very nature of the offence has to be rather low in the scheme of things to receive an absolute or conditional discharge.

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If you go to paragraph 9(2)(c) there's a question of the young offender. Why is a young offender required to wait ten years before access to information is forbidden when under paragraph 9(2)(b) an adult is only required to wait three years? There is some question as to why there is that dichotomy, especially when you're dealing with young people.

In paragraph 9(2)(b), for example, why allow banking of cases in summary conviction offences under the Young Offenders Act? The very nature of a young offender being convicted of a summary conviction offence would indicate that they are in all likelihood not a threat to the community and not required to be banked. Those are matters that I suggest we look at in terms of whether they conform in an overall scheme to the charter.

The question of the final acquittal that's set out in paragraph 10(7)(a) is one that raises questions. The commissioner is required to destroy the bodily substances after a final acquittal. What happens to the substances and the data obtained and used between conviction and acquittal?

We now know that someone may well be convicted and then go to the court of appeal or to the Supreme Court of Canada and eventually be acquitted. That process may take a year, two years, or three years, depending on the circumstances. If those samples can be used in the interim, there is some question again as to whether that person's privacy rights have been violated and whether the result is a form of self-incrimination that would otherwise not have occurred had he or she not been wrongfully convicted the first time.

The question of pardon under paragraph 9(2)(a) raises some issues. It says in the act that the commissioner is required to segregate those bodily substances from others when someone receives a pardon and that they can no longer be used for DNA analysis. The question that arises is what's done with them? Why are they segregated and what are you supposed to do with them? Do they just sit in a room by themselves or are they ever going to be used again? If they're not going to be used again, they should be destroyed. The purpose of a pardon is again a recognition by Her Majesty and the government that a person is no longer a threat to the community and is a law-abiding citizen.

There are certain questions that arise on the issue of the designated offences. There are lists that have been prepared as to what are primary designated offences and secondary designated offences. There is some concern as to various offences that fall within those two categories.

It's recognized that there are certain offences that are appropriate for the purpose of DNA gathering. Since a primary designated offence is generally one requiring the submission of a sample, the seriousness of the offence should be the consideration to determine whether it is appropriate to have that particular type of designation. In my respectful submission, the list causes at least two matters of concern. The first is proposed subparagraph 487.04(a)(xii), which is section 271. That is the sexual assault section.

On first blush one would say sexual assault should be the type of offence that would be a primary designated offence. However, if you know how the application of the sexual assault provision is applied you will know that anything from an inappropriate touching to non-consensual sexual intercourse can fall within that definition. Someone who tweaks someone on the bum can be found guilty of sexual assault, whereas someone who forcibly rapes someone, in the vernacular, can be found guilty of exactly the same offence. There is a summary conviction aspect to that offence and there is an indictable aspect to that offence. The summary conviction holds a maximum penalty of 18 months and the indictable a maximum of 10 years.

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Because of the nature of that offence and the broad spectrum of types of situations that could fall within sexual assault, I would suggest that you consider doing one of two things: only designate as a primary offence those that are indictable offences, or relegate sexual assault to a secondary designated offence, which would then give a judge discretion as to whether DNA samples should be taken based on the circumstances of that offence.

The second matter or section that causes some concern is proposed subparagraph (b)(ii), section 146 of the old Criminal Code. It used to be the offence of sexual intercourse with a female under the age of 14 and between the ages of 14 and 16. Those offences have been repealed on the recognition that young people do engage in consensual sexual intercourse. They have been replaced by other offences that import other criteria of domination or control, but there is an implicit recognition in the cases that went before the courts and in the act of Parliament that it is no longer an offence for young people to have sexual intercourse.

As a result of this, what is basically a decriminalization of that offence happened some time ago. With respect, it makes no sense to require DNA samples for an offence that today would not pass charter scrutiny.

Those are the main offences in the primary designated offence area that cause concern.

With respect to the secondary designated offence area, there is in fact some discretion on the court as to whether a DNA sample should be provided, but in my respectful submission there has to be some correlation between that designated offence and the need to provide DNA samples. And there are certain offences for which I would suggest there does not exist that correlation or connection.

The examples I would point out include, for example, proposed subparagraph (b)(viii) of that section—which is section 252—failure to stop at the scene of an accident. That's a matter that can be proceeded with by indictment or summary conviction, which carries a maximum of six months. It's not an offence that I would suggest speaks to DNA analysis. If someone leaves the scene of an accident, a car accident or another accident, DNA analysis really is not the type of situation that would further the future banking of that kind of information.

Next is proposed subparagraph (a)(ix), which is section 266, the assault section. The assault section covers, as the sexual assault section does, a broad range of offences. Anything from pushing someone or shoving someone or punching them in the face is an assault. It can result in absolute and conditional discharges. One has to wonder: if you get convicted of a tussle, the next thing you know your DNA is being banked because some judge says it's going to be banked.

The other point that causes some concern in this section is proposed subparagraph (a)(xi), which is paragraph 270(1)(a), assaulting a police officer. Unfortunately, often people who are arrested find themselves charged with assaulting a police officer because they don't want to go along willingly. It usually results in some shoving or pushing and that kind of thing, and the next thing you know under this provision, you are going to have your DNA banked for all time or possibly for all time because you got into a shoving match with the police officer.

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So I suggest that you look at those three offences in particular to determine whether it is appropriate to have them in this designated offence area.

One of the other concerns that jumps out when you look at this legislation.... We know there is a right of appeal, and it's appreciated that there is. That does go some way in terms of protecting the rights of privacy with respect to whether a decision is appropriately made to bank DNA.

There are two concerns here. One, with respect to the primary designated offences, you have placed the onus on the accused to rebut the need for the sample. I would suggest that this is inappropriate, that the onus should not be on the accused, that it should be a finding made by the trial judge as to whether it's appropriate, in the circumstances set out in the Criminal Code, that a DNA sample should be banked, not an onus placed on the accused as to why it should not be banked.

The other concern I have with respect to the appeal process is that you give a right of appeal to the prosecutor. I would appreciate a right of appeal for the accused because it's his or her DNA that's being banked. But why to the prosecutor? In most cases, the decision as to whether someone should be banked is a factual decision, and a trial judge will decide, based on all the circumstances that he or she finds in the commission of the offence and the background of the accused person, that it's appropriate or not appropriate to bank that person. The question is, why should the crown be given a right of appeal on a factual determination? I would suggest that this is inappropriate and not in accord with the general framework of the Criminal Code.

You may well provide a provision where, on a question of law, the crown has a right of appeal to determine whether the appropriate legal basis has been determined in a particular case or what the parameters are from a legal perspective as to the taking of DNA, but I would suggest that allowing the crown to appeal on any finding is inappropriate.

The only other issue that I want to address briefly is this. There is a question of requiring an accused person to come forward for banking, and that requires the issuance of a summons. That's under proposed subsections 487.055(4) to (10).

The issue that causes some concern is this. You've provided for a summons procedure where a person is served the summons to attend for DNA samples. The problem arises when you allow for substituted service. One of the things that you're talking about here is protecting the privacy of a particular person, yet you provide for a provision where you can leave the summons with someone who is 16 years of age or older and walk away and assume that the person will show up for that DNA banking. If you're there to protect not only the privacy of a person, I would expect that what you would want is personal service on that person, and if that person doesn't show up, then you can issue an appropriate warrant to get that person. You don't want this kind of thing sitting there, because it's not like a subpoena to come to court to testify; you're asking for someone to be banked for a rather serious consideration in the future.

Those are the considerations that I would ask you to address. The only other matter I would bring up—and this is something that's not in the framework of the legislation but it's almost presupposed by this legislation—is that DNA analysis is like fingerprints and like breathalyser, and I would remind you that it just isn't yet. It may be one day, but it isn't yet. We now find that all we have to do is listen to the news and watch television to know that the analysis of DNA is subject to all kinds of frailties, including contamination and evidence-gathering processes. Those are factors you ought to consider in terms of this kind of scheme.

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Passing this kind of scheme without the recognition that the process of gathering and collecting and storing this type of information is not yet perfected would do very little for the criminal justice system.

Those are my submissions, Madam Chair.

The Chair: Thank you.

Who's going to start? Mr. Thompson.

Mr. Myron Thompson (Wild Rose, Ref.): How much time do I have?

The Chair: I think we can give you about eight minutes.

Mr. Myron Thompson: Okay. I'll probably share it with my friend here. I know he wants to say something too.

There's one area I'd like to bring forward right away. I've heard about it so many times. You mentioned that we have breathalysers, we have blood tests, we have fingerprinting, we have footprinting, we have dental impressions. Apparently these have all been proven to be charter-proof, because we use them as a regular means in our fight against crime.

Now we come out with a new technology called DNA, which I understand is a sample of a hair or a swabbing of the mouth with a Q-tip or whatever. There seems to be some kind of fear out there—and I think you expressed it on a number of occasions this morning—that there's a fuzzy area: “Is this thing going to pass the charter test?” If indeed that is the big fear, or big concern, I think we're doing an injustice to our police departments if we don't allow them to start using some modern technology and some good technology to do what we all want; that is, improve the safety of our Canadian citizens.

If we can get that to happen, shouldn't there be some legal opinions brought forward regarding DNA, and regarding how it's going to affect the charter? Shouldn't those legal opinions be tabled in front of this committee so that we can study them and discuss them and once and for all put it to rest that DNA sampling or testing is maybe no different from these others, and thus could also be declared as charter-proof? Wouldn't it be of benefit in terms of the safety of Canadians to do that rather than to talk about how it may not meet the test?

I heard you say a dozen times that it may not pass the charter exam. How many times did you say it? Why don't we get legal opinions, get them here to the table, where they belong? We are the parliamentarians. We're to make the final decisions. Let's get some facts forward rather than this fuzzy, “It may not”.

Mr. Irwin Koziebrocki: Is that a question?

Mr. Myron Thompson: That's your question. Why not do that? Why isn't that being done?

Mr. Irwin Koziebrocki: I don't think anybody is saying to you that DNA doesn't pass the charter test. The issue here is the process of obtaining and collecting the samples. That is the issue in terms of whether it passes the charter test.

The Supreme Court of Canada, in Stillman and a number of other cases, talked about evidence that's self-incriminating, evidence that's conscripted against you. Breathalyser evidence, blood samples, swabs from the mouth, dental impressions, DNA blood samples—these all fall into the same category. Statements and confessions fall into that same category. They are conscripted evidence.

DNA is not any different in that respect. I think we're really talking about how you go about collecting them. Do you protect the rights of an accused person when you collect them? Problems arise when somebody walks up to an accused person and jabs them with a needle or pulls his or her hair out without asking permission, or without having judicial authorization to do it. That's where you have the problems.

The question here is whether the judicial authorization you've provided, or are about to provide in this legislation, is sufficient to protect those rights and not to violate the charter.

If you want more people with charter expertise to come before you, I don't see anything wrong with that.

Mr. Myron Thompson: Are you telling me that you have to have permission for them to take your fingerprints?

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Mr. Irwin Koziebrocki: Yes. The Criminal Code says so, and the Identification of Criminals Act requires permission. But when I say “permission”, I'm not talking about the accused person saying, “Here, you can have it”. I'm saying there is legislation that allows it, not the police officer taking it upon himself to say, “Come here, I think I'm going to take your fingerprints and pull out your hair and jab you with a needle because I think I need these things to finish my investigation”.

Mr. Myron Thompson: The legislation exists for fingerprints, but you're suggesting it doesn't exist for DNA.

Mr. Irwin Koziebrocki: That's right. It's beginning to exist now.

Mr. Myron Thompson: It's beginning to exist, but how do you get it to exist? It's a technology that is valuable. What do we have to do to get it to exist? Let's do it.

The Chair: Well, we're doing it. That's what we're doing.

Mr. Myron Thompson: But you can't do it without legal opinions. We can't keep saying it might not, it may not. We need some legal opinions. I want to know why they aren't presented with this bill.

The Chair: We're hearing the witnesses. That's what we're doing.

Mr. Ramsay, go ahead.

Mr. Jack Ramsay (Crowfoot, Ref.): I have a quick follow-up question to that, and it has to do with the charter challenge. If we go to proposed section 487.055, what it does allow for is the taking of DNA samples from those who have been convicted and declared to be dangerous offenders and from those who have been convicted of two or more sexual offences. Do you believe that will pass a charter challenge?

Mr. Irwin Koziebrocki: My suggestion is it will not.

Mr. Jack Ramsay: Why will it not?

Mr. Irwin Koziebrocki: Because you're doing it ex post facto. It's not someone who's coming in for the purpose and knows that you're going to, as part of a process, collect a sample if he or she is convicted of those offences.

What invariably will happen with this type of situation is this. Someone will collect a sample under this section. Say someone has been sitting in jail for 10 years as a dangerous offender. You'll go to a judge and say, “Give me an authorization to collect this person's sample, because he's a dangerous offender under paragraph 487.055(1)(a). Here is a certificate of conviction. He's sitting in Kingston Penitentiary right now, and I want to go and collect a sample from him.”

The justice of the peace signs that document, and you go off and pinprick him. The next thing you do is take that sample and analyse it for DNA and then you go to your dead files or your collection of seen files and start going through those, saying bang, bang, this guy did this one and this one. Right? You then charge him with that.

Then you'll have a challenge, because he'll say, “This was self-incrimination. I didn't have to provide that sample in the past. All of a sudden I have to provide that sample, and I was forced against my will to provide evidence that now has resulted in my being convicted of offences that you could never have proved before.”

Mr. Jack Ramsay: With respect, does that not exist now with regard to fingerprinting? If an individual has not been fingerprinted through the process and ends up convicted of an indictable offence, do the law enforcement agencies not have authority now to go and obtain that person's fingerprints to match their fingerprints against fingerprints found at the scenes of unsolved crimes?

Mr. Irwin Koziebrocki: They do that.

Mr. Jack Ramsay: What would be the difference in terms of a charter challenge?

Mr. Irwin Koziebrocki: The difference is the degree of intrusiveness that's involved.

Mr. Jack Ramsay: So we're talking about the degree of intrusiveness only. So if our technology develops to the point where the intrusiveness is reduced, is that the point this will turn on?

Mr. Irwin Koziebrocki: Well, that's part of the point it will turn on, the intrusiveness and the fact that it's a degree of self-incrimination.

Mr. Jack Ramsay: Okay.

The Chair: Thanks, Mr. Ramsay.

Mr. Forseth, I'll get back to you. That's about nine minutes, but I won't leave you out in the cold.

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[Translation]

Mr. Marceau.

Mr. Richard Marceau (Charlesbourg, BQ): Thank you for coming today. I would like to ask you for some clarification concerning the appeal process. You mentioned that there was the possibility of making an appeal and, in that case, it was the Crown and not the individual concerned who had the burden of proving the need for samples. Under what section does this problem of the burden of proof come? Is it under 487.054?

[English]

Mr. Irwin Koziebrocki: I was talking about the section where you're convicted of a primary offence and a secondary offence. Under the primary offence it says the judge shall make an order to take a sample, unless the accused proves the particular provisions of that section don't apply—proposed section 487.051.

Mr. Richard Marceau: But where's the appeal...?

Mr. Irwin Koziebrocki: The appeal process is set out in proposed section 487.054.

Mr. Richard Marceau: Okay.

Mr. Irwin Koziebrocki: That gives both the offender and the prosecutor the right of appeal from the decision to take samples under section 487.051. So under a primary designated offence, the judge is required to make an order to take a sample, unless an accused person—that's subsection (2)—shows that the impact on that person or the young person's privacy and the security of that person would be grossly disproportionate to the public interest, the protection of society, and the proper administration of justice. So that's an onus on the accused person in a primary case.

In the secondary case it's discretionary. It says “may make an order” when it's satisfied it's in the best interests of the administration of justice. Both of those decisions can be appealed by either the prosecutor or the defence under section 487.054.

Mr. Richard Marceau: Okay.

[Translation]

At the very beginning, you said that integrity of the person was a fundamental right which, if violated, could constitute an infringement of the Charter.

If, as opposed to the situation currently provided by the bill, the individual concerned was to be given a choice about the method of sampling, would that be preferable and remove the possibility of a Charter-based challenge?

[English]

Mr. Irwin Koziebrocki: There are three methods that exist right now. One is the drawing of blood, the second is the plucking of hair so that you get the roots of the hair, and the third is the collection of saliva or some bodily fluid.

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I'm not sure the Supreme Court of Canada makes any distinction between the various methods, but obviously some methods are more intrusive than others. Taking a saliva sample by a swab is less intrusive than pulling somebody's hair or sticking a needle in them. I'm going to suggest to you that it doesn't make any difference, because the Supreme Court of Canada says it doesn't make any difference. But if you're asking me from a personal perspective whether one is more intrusive than another, there could be some ground to say one is more intrusive than another.

[Translation]

Mr. Richard Marceau: Yes, but I'm asking you whether the individual concerned should be allowed to choose the method he or she considers the least unpleasant.

[English]

Mr. Irwin Koziebrocki: Again, I think we come back to a more fundamental question. Yes, you could give that choice to someone and that might make it less intrusive because there is some provision that you can actually volunteer to provide this type of sample within the legislation. I expect that on some occasions you will get people to volunteer, especially if they feel it's in their best interest to do so in terms of future release or any penalty that may be imposed upon them. But I would think that in the end, when you look at it, you should not distinguish between the method in which this type of bodily substance is obtained. It's the nature of the substance, the effect of obtaining it, and the fact that someone is banked. That is the real issue here.

[Translation]

Mr. Richard Marceau: I had the same question too concerning subsection 9(2), under which samples may be retained after a conviction has been quashed or the person discharged. I would like to point out to you that we were told that it was impossible to destroy a sample and that once the name had been removed and the samples rendered inaccessible, there was no longer any danger. We were told that there was no technology for destroying the information in the data bank. We found that a little strange. If the technology exists to take the sample—

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): It's not the sample. It's something else that cannot be destroyed.

Mr. Richard Marceau: Therefore, it's the profile. We were told that they did not have the technology to eliminate information. That seemed to us strange, and I would like to have your viewpoint on that.

[English]

Mr. Irwin Koziebrocki: Not being a scientist.... I have seen the DNA profiles that have been prepared in cases that I have been involved in. A film is prepared with various markings and lines. I expect this could be easily destroyed because some of the background material is destroyed in the process of creating it. But whether or not it can be eliminated from a computer profile, I can't answer.

My concern with respect to that is not so much the fact that you take it out and burn it, destroy it, tear it up, or do whatever; it is that there doesn't seem to be anything to address the use of that profile in the hiatus between the conviction and the acquittal. That has to be addressed. What happens when you do use it to go back into your data bank and find three other offences that this profile matches? You weren't entitled to that profile, or you became unentitled to it at the time of the acquittal. So what happens in the meanwhile? Does that evidence become inadmissible in any other proceeding? It's something you have to address here and it doesn't seem to be addressed.

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The Chair: Thank you, Mr. Marceau.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I'd just like to follow up on that line of questioning. It reminds me very much of a case that went to the Supreme Court of Canada.

I'm sure you're familiar with the Josh Randall Borden case. It was a case out of Nova Scotia where a gentleman was under investigation for a rape. He was questioned by police and in the statement they took from him they used what was later viewed by the Supreme Court as trickery because they said they were speaking to him about investigations; they added an “s”.

Subsequent to the collection of DNA, they applied samples that were taken with respect to the first rape to an outstanding case that had occurred beforehand. There was a match. Regardless of any commentary on the accuracy, it was found to match and he was convicted at both trial and appeal court level. It went on to the Supreme Court of Canada and they deemed it to be inadmissible for the very reason that it was improperly obtained by virtue of the police overture that it was “investigations” and he wasn't fully apprised of that. He thought he was giving a sample for one.

This legislation would seem to remedy that. I guess it comes down to your perhaps philosophic opinion that whether a person is convicted or not, if the evidence collected was done so improperly or if you're pending the outcome of a trial either through appeal or due process, it's not to be used for another investigation, another outstanding crime, be that another rape, murder, or whatever.

Mr. Irwin Koziebrocki: I think the concern is that when that person is convicted, pursuant to the scheme you've set up, that sample would be properly taken. At some point in time, it may become improperly taken. In the court's view it may remain properly taken throughout, but you have to address the question of whether in fact it becomes improperly taken or remains properly taken and what the effect of that is on other offences. That doesn't seem to be addressed here. It has to be a concern to anyone who finds themselves in this situation.

For example, let's take someone who professes their innocence with respect to a particular event and then at some point in time down the line it is found that they truly are not guilty of that offence. In the meanwhile, you have used that DNA analysis for other matters. You may well find yourself in that kind of Borden situation. I can't say, but it's certainly something that could result from this type of situation.

Mr. Peter MacKay: I guess it goes back to cases like Feeney, too. It's a situation where you're weighing individual rights versus community protection of property rights or public rights.

I do want to pose to you that it appears to me that we're dwelling here a lot on the negative use of DNA or the possible abuses or improper use. It's fair to say, is it not, that this DNA technology has also been very useful for defence? There are the obvious cases of Morin and Milgaard, where irrefutable evidence came forward that proved their innocence. Certainly there is a great deal of benefit that can flow in terms of a person voluntarily giving samples. If they maintain their innocence and they say they're prepared to give samples voluntarily or by virtue of a court order, this can free them.

I want to ask you another question. You referred to the right of appeal on the banking and the concern that there's a reverse onus here. Is that not also true of section 100, where a judge makes a prohibition order? You also used the example of a judge making mandatory treatment prior to release or as a condition of probation. Is there not a similarity to be drawn there between those mandatory provisions?

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Mr. Irwin Koziebrocki: I'm not saying this is the only place in the Criminal Code where there are reverse onuses. There are reverse onuses throughout the Criminal Code. A number of them have been struck down by the Supreme Court of Canada as not having the appropriate causal connection between the offence and the prohibition. Others have been maintained, because they've been saved by section 1 of the charter.

My view is that when you're dealing with a situation such as this, the determination should be a judge-made determination. The judge can look at all the circumstances and determine whether it's appropriate. Especially if you're going to leave something like sexual assault in the primary category, you want the judge to make that determination as opposed to the accused having to fulfil what is a rather difficult section to fulfil.

That person is going to have to show that, first, they're a hemophiliac and you can't take a sample, and second, if you pull a hair sample out of them, they're going to have a heart attack, and some other far-out provision to prevent you taking saliva swabs from someone. In those circumstances, I think it's almost impossible to fulfil that particular requirement.

I would suspect there will be only rare incidents where you will find someone fulfilling that. It might well be someone who's 85 years old and on their last legs. They will say, look, you can take it if you want to take it, but you may kill me if you do it.

So it seems you've created a situation that effectively makes it mandatory. My respectful submission to you would be that it would be more appropriate to leave it to the discretion of the trial judge in certain appropriate circumstances as you set out in the (b) section.

I would just like to add my view with respect to what you've said in terms of DNA analysis. I would concur with you that the development of DNA and testing has been a great boon for the defence in certain respects. At least as far as the development of that technology, we know it is a much better exclusive than inclusive tool. You're more likely to exclude someone from a particular crime than you are to find them having committed the crime. You get many inconclusive results with DNA, in terms of trying to show that you have the right person, but when you have DNA you can surely tell that someone didn't commit a crime.

So no one disputes the validity of and the need for the DNA process in the criminal justice system. In fact, I think I started by saying that it was important to the criminal justice system.

Mr. Peter MacKay: So in light of the comments with respect to reverse onuses, you are in favour of increased discretion on the part of a judge as to the specific application when you make these mandatory samples.

Just further to that, would you agree with the premise that in many cases there is going to be this inevitable process? One only needs to review Hansard when fingerprint-type or breathalyser-type evidence was first being introduced. Lawyers are going to practise their trade, and it is going to take time for the courts to make these determinations.

It's inevitable. You can't make airtight legislation. This is lawyers' stock and trade. I say that because—

Mr. Irwin Koziebrocki: Do you want me to answer that?

Mr. Peter MacKay: I do.

The Chair: It does have a job creation agenda.

Mr. Peter MacKay: In furtherance of Mr. Thompson's comment that we should be striving for—and I certainly think we are striving for—the legislation to balance both the rights of individuals and the protection of the public.... It's not realistic for us to expect that we're ever going to be able to avoid charter challenges. So for lack of a better word, I don't think we should be gun-shy about churning out legislation.

Mr. Irwin Koziebrocki: All I can say to you is that if at first blush somebody looks at the breathalyser legislation...it's a fairly simple process to obtain a breathalyser test in an impaired driving case. But if one looks at the amount of litigation it has spawned, you're quite right, lawyers have a way of taking something that's very simple and making it into something that some might consider very complicated.

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Mr. Peter MacKay: I have one very final and specific question. You talked about the primary and secondary designation. As a criminal defence lawyer I'd like your opinion on section 163.1 of the code, which deals with child pornography. Given the intent of this legislation, do you feel this should be a primary designated offence?

Mr. Irwin Koziebrocki: Where are you looking?

Mr. Peter MacKay: That's Criminal Code section 163.1. It's not the legislation.

Should it be designated as—

The Chair: He's asking you if possession of child pornography should be a primary—

Mr. Peter MacKay: You mention specific ones where you feel there is no correlation. I'm suggesting that perhaps this is one the legislation has overlooked.

Mr. Irwin Koziebrocki: I didn't see it in the bill. I think if I had seen that, I would have suggested to you that this really isn't.

What are we talking about now? We're often talking about stuff that comes off the Internet, off computers. We're talking about possession as opposed to being involved in making it. I would expect that DNA would be rather useless in that respect. There's no causal connection there. I can see a better connection between that and leaving the scene of an accident than I can where somebody in an accident might leave some bodily substance behind. But I don't expect that you would see that kind of thing in this particular thing, though I can envisage situations—

Mr. Peter MacKay: It would be pretty graphic. We won't get into it.

Mr. Irwin Koziebrocki: I would expect that.

The Chair: Mrs. Finestone.

Mrs. Sheila Finestone (Mount Royal, Lib.): Thank you very much, Madam Chairman. This has been an extremely interesting look at an aspect of new technology and high tech—that's what it is basically—and how you apply that in a moral, legal sense, with the kind of sensitivity you have in a world that sometimes, we think, has gone crazy.

We're dealing with the most individual, intimate, and personal kind of information one could possibly have, and it has a somewhat moral issue attached to it. Yet it has some very real benefits.

I have a couple of concerns. The first relates to some questions that have been asked by Mr. Ramsay and Mr. Thompson and supported with additional questions from the other interveners. It has to do with retroactivity, with the question of reverse onus, and with invasive or non-invasive technology.

I would first like to deal with the fingerprints issue. We never had digitized information available before. We can now do fingerprints and have them digitized.

We have all accepted the fact that you can use a CANPASS in the airports of Vancouver and Toronto. It allows you very quick access, and very little other information is needed. You have voluntarily decided that you will give this pass, put your fingerprints on it, have it digitized, and it becomes available to the whole society.

What I don't agree with is where you get the cross-information. This is where Revenue Canada can then determine that they'll look at what happened to you. Did you buy or didn't you buy, and did you say you didn't or you did? This becomes a question of when and how you use the right of information.

So I think in a sense it's applicable to what is the newest of technology, but of a different nature. You didn't have to do a pinprick, a hair-pull, or a mouth swab. Now you have to do one of those three to get to this information.

Is the invasiveness of this technology such that it should prevent the benefits to society? I think there are really some very substantial benefits in this new technology, and I'm not displeased with this bill. But I am a little concerned as to how far and how long we have to wait before the Supreme Court is going to catch up with new technology, and where we can use this effectively in the best interest of society.

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My question to you is whether, given new technology, you would recommend that we go to the courts and ask for a review, whether they would accept this bill. Or are we going to have to wait and and challenge it with all the lawyers...I don't want to say lining their pockets, seeing as how I have a bunch of lawyers in my family; I don't think they would like that very much.

But seriously—

Mr. Irwin Koziebrocki: We couldn't guarantee that they're not lining their pockets with this, not in the criminal justice field.

The Chair: Let's do some hearings on that.

Mrs. Sheila Finestone: My first question is whether it warrants going to ask the question of the Supreme Court, or is that too long and too delaying a process?

Second, do you not agree that in today's modern society the ability to find those who have committed what I almost could define as heinous crime—although it's not a heinous crime; it's a horrible crime—a death, killing, rape, sexual assault...?

I don't agree with the decision in your division on sexual assault, but that's beside the point.

Those are issues where if you could remove these people, or do some kind of treatment for them, you're going to prevent abuse and loss of life. So I find the move in the use of this useful.

Mr. Irwin Koziebrocki: Again, that's a question.

Mrs. Sheila Finestone: Yes, well, they were both questions.

Mr. Irwin Koziebrocki: My position to you is this: I'm not saying to you that you have to go to the Supreme Court of Canada to decide whether you want to pass DNA legislation. In fact, I think I started off by telling you that it was a useful and important piece of legislation. My concern is that when you pass legislation, you pass legislation that will pass muster. When you say, should you go to the Supreme Court of Canada...? Well, the Supreme Court of Canada has already told us that if you take certain bodily substances and you take them surreptitiously or in some fashion where you use force, or you don't have some prior form of authorization, then you're going to be subject to a situation where that information is going to either violate the charter.... It will, therefore, be inadmissible, and you can't use it in court to convict somebody.

So you ought to take it in a fashion that doesn't violate the charter. One of the ways it may not violate the charter is not for me to say. It's for the courts eventually to say, and for you to say in that respect by way of legislation, that would do it without violating the main tenets of the law in Canada, that is, the Charter of Rights and Freedom.

Mrs. Sheila Finestone: If given the new law you were to get your information and then use that information, which you got rightly in the first instance, to review backlogged cases, I don't see where that's a violation. That's where I'm having difficulty.

I believe one has to respect the charter—Canada is a law-abiding country—but that doesn't preclude the fact that if you have information you got with the right procedure, based on this new piece of legislation.... Why do we have to put in the legislation that you're allowed to use it retroactively?

Mr. Irwin Koziebrocki: I don't see anything wrong with saying that you're entitled to set up a process where, if someone is convicted of a particular offence, part of what happens to you as part of this conviction is that you may well have your sample taken for purposes of banking. I do see something wrong when someone has been convicted ten years ago and you decide retroactively to go back to that person. You say, excuse me, I want to take your sample because I want to match it against other unsolved crimes. There is an element of self-incrimination involved in that. That's where the difficulty lies with this type of legislation.

Mrs. Sheila Finestone: That still doesn't answer my question. I heard what you said. I'm not totally in agreement, but that's beside the point.

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I'm suggesting that the case just referred to by Mr. MacKay was a case that was heard in 1994. If this law were in place and the question of retroactivity was clearly defined in that law, could Mr. Borden's case have had a different outcome before the Supreme Court? First, it was taken based on this proposed law before us. Second, once it was taken, the law said you could use it retroactively to look at things that had happened in the past.

Would that answer it? A law is not just for today. A law looks 20, 30 years down the road.

If this law had been in place, would this have happened? If retroactivity is clear and if the whole question of reverse onus is clear, would that have been a case that went before the Supreme Court? I want to know if we need to amend or add to this law, and that's outside of functional creep, which I wanted to ask you about.

Mr. Irwin Koziebrocki: In my personal view, the result would have been the same.

Mrs. Sheila Finestone: So there's no way that we...? I think it's in society's best interest to be able to use that information.

Mr. Irwin Koziebrocki: You may be right in the sense that many things are in society's best interest to use that information. It doesn't mean that it meets charter scrutiny and it doesn't mean that it would survive sections 1 or 24 of the charter. There are many things that, when you look at them from the perspective of a committee, you say you want to do.

One can only envisage what would happen here. There are several people residing in the Kingston area. I expect the police would be there the next day to take samples to find out whether a number of unsolved crimes along the 401 between Toronto and Windsor can be connected to those people.

The Chair: No. I'm from Tilbury and it never gets as far as Windsor.

Mr. Irwin Koziebrocki: Fair enough. You're right.

But you know what I'm saying. That's exactly what would happen.

On whether it's good for society that this happens, probably it is good for society that this happens. Whether it would pass charter muster be considered to be admissible evidence is another story. I would suggest that you would have some difficulty in that respect.

The Chair: Thank you, Mrs. Finestone.

Mr. Forseth, you had a question, but just briefly, please.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you. I have a couple of minor points.

Earlier you brought up the subject of pardon and you talked about the banking issue. Then you said, well, if a pardon is granted, why aren't these records just destroyed? Did you not say that?

Mr. Irwin Koziebrocki: Yes.

Mr. Paul Forseth: As you know, criminal records are sealed at pardon, but they're not destroyed, because they can be reopened again when a person seriously reoffends, after they've been given a pardon. That's why they're not destroyed.

So fingerprints and all the other records are sealed at pardon, but on occasion they're reopened again. Would the DNA banking material not fall into the same category as those other materials?

Mr. Irwin Koziebrocki: Well, it might, but you haven't said anything in the legislation on what's going to happen. What you've said is that they have to be kept separate and they can't be used for analysis. That's all you've said.

If that's the case, then they get put in a room somewhere and you can't ever use them for analysis. If you want a room like that, that's fine, but....

Mr. Paul Forseth: Okay. So I suppose there's some further clarification as to pardon materials, the assumption that they be treated the same as other pardon materials and could be accessed again in the future.

The other minor point is that you made the assertion that the breathalyser, fingerprinting, and DNA are analogous. I think you used the words “it isn't there yet”. Perhaps that refers to some kind of scientific opinion. For our own education, could you refer to us some report, articles and so on, that could substantiate that kind of opinion? Perhaps you could it make available to us later. Give us some direction so that we can have some reading material on that issue.

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Mr. Irwin Koziebrocki: There are a number of reports that have been dealt with more recently in various courts in the Toronto area, various cases coming out of the Centre of Forensic Sciences, especially with respect to contamination of various matters.

Just as a general comment—and I don't think I can be more specific than making a general comment—the gathering of DNA and the processes have developed substantially over...we're really only talking about 10 years. It was about 1988 when they really first started to do DNA analysis on a regular basis. Effectively there wasn't a lab in Canada doing it until the 1990s. I think the lab in Toronto was set up probably about 1992. They've been backlogged in terms of the type of work they do. The process they used to do and that still goes on in Canada takes weeks to produce the actual film.

So we're not talking about taking a blood sample, putting it under a microscope, shaking it around a little bit, putting it in a little computer, and it comes out. That's not where it's developed here.

Several labs in England and the United States have developed a more effective way of doing it, and in fact have developed to the point where they have grown DNA. So when you had a sample that was too insignificant to test, they've actually made more of it so you can actually test it.

The technology is growing. I've read that there are certain processes in existence now, and being developed, that will be able to do the process in hours as opposed to weeks. This is a kind of growing thing, and I expect that certainly within the next few years the technology would be much more advanced.

Remember, when you pass this you're dealing with what you have now. You may end up with rooms full of stuff, and you may have to chuck a lot of it in the end, because it just won't be there; it won't be the type of thing that can get you what you want.

I think you should be talking to a scientist as opposed to a lawyer.

The Chair: Thanks, Mr. Forseth.

Mr. Discepola.

Mr. Nick Discepola: Very briefly, Chair, I want to go back to try to determine whether I've understood it correctly.

What you are saying is that the actual sample and the process by which the samples are taken contravene the charter. Is that correct?

Mr. Irwin Koziebrocki: That's part of it.

Mr. Nick Discepola: Then let me ask this question differently, because you don't seem to be answering questions specifically. Maybe you may want to choose to give us your opinion once in a while.

I don't understand the difference. If I read you correctly, you're saying that even the taking of fingerprints contravenes the charter but that there was special legislation to circumvent that.

Mr. Irwin Koziebrocki: What I say to you is that there are legitimate means to take samples. One of the things you're trying to do with this legislation is to provide a legitimate means of taking samples, bodily substances.

Let me refer to fingerprints. If it were not for the fact that there was a legitimate means, the Criminal Code and the Identification of Criminals Act, which have been upheld by the Supreme Court of Canada as being an appropriate means to collect—

Mr. Nick Discepola: What would we have to do then to change those two acts to allow the taking of DNA samples?

Mr. Irwin Koziebrocki: That's what you're trying to do right now.

Mr. Nick Discepola: I'm asking your opinion.

Mr. Irwin Koziebrocki: What I'm saying to you is that you're on the right track. There are just a few things that I think might make it a little better.

Mr. Nick Discepola: I sense from your testimony that maybe it's the lawyer's tradition that you want to restrict. In my case, if you're going to make this bank worthwhile and successful.... By restricting it you're going to render it almost useless, because you don't have enough samples to test it.

What we should be doing is looking at ways to enlarge the database as much as possible without being intrusive, without contravening the charter,

When we get back to retroactivity, for example, I don't understand why going back and asking somebody to give me their sample might be self-incriminating. Yet if I ask a criminal who's been charged and convicted to give me their samples, it's not incriminating. Under the warrant legislation when we can go and ask for a sample, that's not contravening the charter in any way.

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I'm very confused.

Mr. Irwin Koziebrocki: I think you're doing three things in this legislation. First, you're setting up a collection of crime scene samples.

Mr. Nick Discepola: That can't be against any charter.

Mr. Irwin Koziebrocki: No, I have no problem with that whatsoever. I think that's an appropriate thing.

Second, you've set up a legislative scheme to obtain warrants. You never asked us about that when you did it; you just did it. I think that one is subject to charter challenges in the courts right now. We'll see where that goes.

If you want to talk about that, that's fine, but you've already done it, as far as I can see.

Third, you want to set up a bank so that you can have people against whom to compare samples in the future, much like fingerprints. Again, I'm not suggesting that this is wrong. I'm suggesting that there are certain things you ought to look at, and I've given you a list of some of them—

Mr. Nick Discepola: I have one last question then. If we were to store only the profiles and get rid of the samples right after the profile was established, would that change your opinion on any of these?

Mr. Irwin Koziebrocki: I don't think it makes one bit of difference whether you store one piece or the other piece.

The Chair: Thanks, Nick.

Jack, you have two minutes.

Mr. Jack Ramsay: I want to get back to proposed subsection 487.055(1). That is where this legislation is going to allow a police officer to obtain a sample from a convicted person who has been designated a dangerous offender, or who has committed two or more sexual offences.

Now, we've entered that room, we've opened the door into this area. If that is charter-proof, then I see the benefit of expanding the offences.

When the minister was here, we discussed the fact that this bill will not allow the police to obtain a DNA sample from people like Clifford Olson. I have a long list here of other people who have committed rapes but have not been convicted of them.

The evidence is clear in the Clifford Olson cases that the rape of those little children occurred. But because the legislation only allows for the taking of DNA samples from people who are declared to be dangerous offenders and who have been convicted of two or more sexual offences, this doesn't allow the police to take a sample from the likes of Clifford Olson.

An hon. member: Why not?

Mr. Jack Ramsay: It doesn't allow it, because Clifford Olson has been convicted of murder. He hasn't been declared a dangerous offender or been convicted of two or more sexual offences.

We've opened the door to that. As a committee, we may expand the number of offences and the category of offences where the DNA sampling can be taken after conviction.

If I can, I want to clarify that issue and I want to refine it a little more from when I first asked you about that. That is, are you concerned about self-incrimination as a result of that, or are you concerned about the principle of retroactivity, or both?

What are your concerns in this area in terms of a charter challenge?

Mr. Irwin Koziebrocki: I'm concerned about both: retroactivity in terms of its legalistic term and whether you can pass retroactive legislation.

Second, the very nature of what you're doing is to self-incriminate someone in a situation where it hadn't existed at the time they were convicted of a criminal offence.

Mr. Jack Ramsay: All right. Then may I ask you this as a repeat of what I asked you before: inasmuch as the same situation exists for fingerprinting and is not considered to be self-incriminating...? In other words, if they don't have the fingerprints of someone in jail for a murder, they can now go ahead and do that and compare those fingerprints against fingerprints found at the scene of unsolved crimes.

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Inasmuch as that is already being done and that is not considered to be self-incriminating, why in your opinion do you see any difference with a DNA sample?

Mr. Irwin Koziebrocki: Because it's more intrusive.

Mr. Jack Ramsay: All right. Can I touch on intrusiveness?

The Chair: Let me get to Mr. McKay here. We still have some other business to attend to today.

Mr. John McKay (Scarborough East, Lib.): I just want to go to the point where you're making representations to a judge after your client has been convicted of an offence. You're making representations with respect to whether these data obtained in the course of the charge and conviction are going to be banked. The question I have for you is, what are your top three arguments on why this material should not be banked? What's the defence bar going to be saying at that point?

Mr. Irwin Koziebrocki: The first thing they'll look at is the nature of this offence. If it's lower in scale, if it doesn't indicate particular acts of violence, you would argue that it wouldn't be appropriate to ask for banking.

You would argue the nature of the accused person if this was a matter that was completely out of character and that person was not the type you would normally find in that kind of situation. Unfortunately, people will find themselves in situations that could be a once-in-a-lifetime situation. Young people, especially because of their youth, may get involved in something and well regret it, and they may never see the inside of a courtroom again. So that's a factor.

The third factor would be whether the DNA sample or profile would be of any necessity to the administration of justice.

Mr. John McKay: Almost like sentencing arguments....

Mr. Irwin Koziebrocki: Just like sentencing arguments.

Mr. John McKay: Given that DNA is a far stronger tool that has probative value in terms of its exclusionary quality as opposed to its inclusionary quality, wouldn't many of the arguments you just made almost be a disservice to your client? In other words, if the client is a person who has found himself in a once-in-a-lifetime situation, wouldn't he or she as much appreciate having the DNA banked so that they are eliminated from any possible other connections?

Mr. Irwin Koziebrocki: I can see that being an approach taken, but I think most Canadians look at the state of their lives from the following perspective. We don't like to be fingerprinted. We don't like to be photographed. We certainly don't like to be poked and prodded by needles and samples put away somewhere. We don't like income tax calling us up and looking at this part of our lives or that part of our lives. We like to have part of our lives private. It's part of the nature of a democratic society to say, look, I can live in this society and my fingerprints aren't banked and I don't have to carry an ID card. I'm not going to be stopped on the street by somebody asking me for my identification. That's part of our heritage.

Mr. John McKay: It's part of your professional obligation, though, to discuss with your convicted client whether that is to go forward or not.

Mr. Irwin Koziebrocki: Absolutely. There may well be certain clients whom you are going to volunteer as opposed to argue against.

Mr. John McKay: Should the legislation mandate your professional responsibility in that respect?

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Mr. Irwin Koziebrocki: Legislation always mandates our professional responsibility. We have to tell our clients what they're facing and what they have to look forward to. If you don't, then you might find yourself in front of the law society.

The Chair: Thanks, Mr. McKay.

Mr. Koziebrocki, thank you once again for a thoughtful and entertaining hour and a half. We appreciate it very much.

We will rise for a few minutes and then we'll deal with Mr. McKay's motion.

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The Chair: We're back, and we have Mr. MacKay's motion.

Peter, go ahead.

Mr. Peter MacKay: Thank you, Madam Chair.

The motion I've put forward deals specifically with two recent cases in Canada where individuals were on parole, one individual for a murder, the other individual for serious crimes involving armed robbery and use of firearms.

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After being granted full parole, in the case of Michael Hector, he committed three murders while on parole. The other individual, a gentleman by the name of Russell—and I use the word “gentleman” very loosely—murdered his landlady while on parole. I'm not going to go into full detail on these cases, but in both cases there were reports by the board of investigation that came to the conclusion that there was a serious flaw in terms of the information that was made available to the major players, who in the final analysis would have had input and decision-making into the release of these dangerous offenders.

The reports show that there appears to be a fundamental breakdown in the exchange of information between the board, police agencies, judges, the parole officers who were supervising these individuals, and perhaps most fundamentally, those who were affected, the victims. The victim in the Russell case was a landlady who had met Russell while he was taking employment training and was not aware of the fact that this gentleman was a dangerous person. It begs the question, would she have taken him into her home, where she was murdered, had she known?

There were also indications from psychologists and psychological reports that stated quite clearly that in the case of Michael Hector, any free time that became available to him was going to lead him back into crime. He had a propensity, when not employed or not occupied, to fall back into his old ways. That information was not made available to the parole board.

There appear to be serious questions still remaining as to where the system broke down. And that begs the further question, how do we put something in place to ensure this information is going to be exchanged? Is it a result of these persons being overworked, carrying too high a caseload, and simply not tapping into the information they do have available to them? All of these questions arise from these cases that resulted in the most extreme result that one can experience as a victim: losing your life.

It comes back to this. Do we as a justice committee address this in a timely fashion? Do we look into these specific cases with a view to looking at the broader question of where our parole board is breaking down? Why are these agencies not communicating and exchanging information that may have—and it's simply 20-20 in retrospect to say it may have—prevented these offences?

There are all sorts of examples. I'm not citing these two as the only times this has occurred, certainly. But in my opinion it faces us with the task of seeing that we are doing everything possible to ensure it doesn't happen again, both in the specific parole boards and it may involve making changes that are going to improve the standard or raise the bar for the persons working in the system. I'm not suggesting these two cases should be a witch hunt for the persons who were directly involved, but again, what examples are we to draw from this?

I came here to Ottawa and took part in this justice committee with the understanding that this is what we were tasked to do, that we are here to try to improve the system and to try to protect the public. The victims here are the ones who appear to be ignored.

I would suggest this is very in line with the mandate we set out at this committee level: that we were going to work towards establishment of a victims' bill of rights. I would suggest these two cases provide a window of opportunity to get the ball rolling. Let's strike a subcommittee. Let's look at these two particular cases, and if need be, broaden that mandate and look for answers and solutions.

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The motion itself reads very simply:

Whereas serious questions have been raised with respect to two recent National Parole Board/Correctional Services Canada Board of Investigation Reports; and

Whereas both reports were conducted in cases which involved individuals who each committed murder while on parole; and

Whereas both reports raised serious questions about the operations of the National Parole Board and Correctional Services Canada;

Therefore be it resolved that the Standing Committee on Justice and Human Rights conduct an independent review of these two reports with the goal of preventing future tragedies such as the ones investigated in said reports.

I also want to comment briefly on one of the other players, and that is the John Howard Society. I cast no aspersions over this body. I think they do tremendous work, but I think we have to look at their mandate and their objectivity in providing information to the various bodies. They work as advocates for, in many cases, both parties: victims and those facing release. In my opinion there are times, and perhaps these cases are reflective of those times, when they cannot be objective. The parole board contracts John Howard Society and relies on them in many cases for very, very crucial information. If that information is flawed or not objective, the end result is life and death.

That, very briefly, is the information I am providing. These reports are available, and I thank the chairperson for making them available. They're not the full reports. I realize that they are somewhat edited or the information is not complete. However, at the end of these reports are questions we should be addressing.

I would ask that the motion be put to a vote.

Thank you, Madam Chair.

The Chair: Thank you.

Mr. Ramsay, please.

Mr. Jack Ramsay: Thank you, Madam Chair.

I support this motion. I think it would be comforting to the public at large to know that the justice committee is responding to these unfortunate incidences by independently reviewing what went wrong and what could be corrected in the future to provide greater safety to innocent victims of actions taken by Correctional Service Canada and the National Parole Board.

I don't think this is a partisan issue either. I think we all have a vested interest in attempting to improve our parole board and the policy upon which they function.

I would therefore support the motion and the direction that the committee members might want to take if they agree with this motion and the fact that we as a committee do have a responsibility in this particular area to take a non-partisan look at what amounts to a vital safety feature within society.

I think this would bring comfort, in fact a great deal of comfort, to society to know that the justice committee is prepared to examine and make recommendations to improve the system and the safety of society.

The Chair: Thank you.

Mr. Forseth, please.

Mr. Paul Forseth: Thank you very much.

I certainly, in John's sense, support the spirit of the motion, but Mr. MacKay may wish to amend his motion, improve it, or delineate it a little bit more. Some questions come to mind.

Based on the wording, is he talking about the whole committee, is he talking about a subcommittee? If it is a subcommittee, how many? What power would it have? Would it have any money to conduct its affairs? What would be the timeframe? Would it be an unending investigation, or would it report within a specific period of time? What would happen with the end product? Where would we go from there? If the committee creates a 15-page report, what do we do with it?

I would like some further specificity as to format, substance, and where we go with it, even though in general I support the idea.

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The Chair: As a point of information, in general this committee tables reports in the House and typically asks the government for a response, so I think that question's already answered.

I have a memo from Mr. Mancini, indicating that he can't attend and is unlikely to get a substitute. He wanted to indicate his support for Mr. MacKay's motion. I wanted to read that into the record so Mr. Mancini knows that I followed up on his letter.

Mr. de Savoye.

Mr. Pierre de Savoye: Thank you, Chair.

First I would like to raise a question of privilege. It is my understanding that 48 hours' notice is to be given before any motion is deposited, and that's a sign of respect for other committee members. I, as well as at least one other member, received this motion only this morning at 10. I think in the future steps should be taken to respect that 48-hour notice and that we should all be given copies of the motions in writing 48 hours prior to their being discussed.

I'd like to speak on the motion and essentially follow up on Mr. Forseth's comments. Even in Mr. MacKay's preamble...an awful lot of the questions he raised go beyond the scope of the motion. The motion essentially says to create a subcommittee—even though it doesn't say subcommittee—to review the two reports in question, but an awful lot of the questions that were raised and we all have as committee members go beyond the analysis of the two reports.

I would think the establishment of a subcommittee at this stage would be redundant. In April the committee is going to be called upon to review the full Conditional Release Act. The committee is free to choose whether it wants to do it as a subcommittee or a full committee. It seems to me to strike a subcommittee to review the contents of two reports, which we all agree said there were inherent mistakes in the system.... I don't see how that subcommittee, if it sticks to its limited mandate, will arrive at any other conclusion than that which is already contained in the report.

I am therefore saying we should essentially review the full parole board as one of the agencies when we do the full Conditional Release Act. That would answer an awful lot of the questions Mr. Forseth has.

In the interim, Chair, I would be prepared to propose to the committee that we have the commissioner, Mr. Ingstrup, as well as the chair of the parole board, Mr. Gibbs, testify before the committee at your convenience, as early as possible. I would propose that we have two hearings, one public and one private or in camera.

In the in-camera session we are prepared to give the full report, not the one that has been circulated to you. Because of access to information requirements, we are proposing that only permanent members of the committee attend the in-camera session. We would give you the full report, which would be given back to us afterwards. The committee could then at least ask the two key people the questions. In view of setting up the necessary groundwork for the April review of the CCRA, it seems to me it's a little bit more logical, as opposed to just striking up a subcommittee for two weeks.

Again, I would agree with Mr. Forseth. If we're going to have any impact in this subcommittee, you'll have to enlarge the mandate of that subcommittee, which is eventually going to be the CCRA review anyway.

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you. I can't help but have a small sense of déjà vu.

The Chair: I was wondering.

Mr. Derek Lee: This justice committee got into the issue of corrections and parole big time back in about 1986 or 1987 and reported at that time on the completion of their review. I wasn't an MP then. I arrived in 1988.

In 1988 there were the unfortunate incidents involving inmate Legere and inmate Gingras in two different parts of the country. I think they both escaped during ETAs. Murders followed. Subsequent to those two cases, there was the case, one incident, of Foulston and Crewes, two individuals on parole.

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The committee took these very seriously and went down the road on all of them. I think it took us about two years. It took two years because the department refused to turn over an unexpurgated version of the reports. That refusal ended up on the floor of the House. Ultimately the point was made, and the point was accepted.

The procedure, which Mr. Discepola has suggested here, was offered and accepted in the House. Rather than take the battle further, it was accepted, and it was a reasonable resolution. We got the documents proceeded and then reported.

That report, or at least the conclusions on it, would be very useful reading for members. I certainly wouldn't go on to something else without reading where we left off.

In fact, though, the matter didn't end there. Corrections Canada was subjected to intense scrutiny in that period, even to the point of placing the commissioner under oath here, publicly, in the committee. It's something that's not done very often.

It culminated, I think, in 1994, with the resignation of the chairman of the National Parole Board. That was almost an aftershock from the few years that had preceded that.

Our job as MPs, in the House and at committee, is to seek accountability of all the government mechanisms. Whatever our taxpayers are paying for, we look for accountability. Corrections Canada and the parole board are dealing with essentially dangerous commodities here, and we want to look for pretty rigorous accountability.

So I'm quite prepared to get into it again. If every 10 years we have to get into it, we'll keep doing it until we get it right. Unfortunately, mistakes occur.

In terms of the procedure we would use, I think some members would benefit from spending quite a few hours on the matter, learning the system—although I suppose it's not that complex—and understanding how the inmate moves in and out of the corrections system, how conditional releases are dealt with and so on.

Keep in mind that our study on this resulted in the new statute, the CCRA. There were many other things happening as well to produce that statute, but the work of this committee I've described was quite an integral feature of the CCRA when it was introduced in the House and adopted.

So whatever we're doing here should reinforce the accountability under the CCRA. The learning curve is...and I don't know how to get through that, but we won't have good procedure unless we learn it.

If it's to be a short procedure, then there's no reason why the whole committee can't do it. If it's to be a longer procedure, maybe a subcommittee would be more appropriately designed for that. If it's the short procedure, then I think the in camera session should come first. It's less formal and it allows all of the information to be sorted out from the uncensored version. Then a public meeting, where we at least can be seen to be doing our work as MPs, would follow that.

What we do in camera is not seen by the public. The only difficulty some of us have had is that after the unexpurgated versions are made available, there's a continuing obligation to not make public what was intended to be kept private. So as we discuss publicly with both the chair of NPB and Corrections Canada there would be some elements involving...that wouldn't.... Two categories that they don't want to go public, which we accept for most purposes, are personal information where it's not necessary to go public and matters involving the operation and the security of the institutions.

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So I'm in favour of proceeding with the short version, with an in-camera first. I think staff can probably help us. I think both of you were around in that period and would be a great help in getting us spun up for the short version. Obviously we don't have a problem with the department getting information. If we did I'd take a different attitude, but half the battle around here is attitude.

Thank you.

The Chair: In the last Parliament we saw Mr. Lee's attitude on these things a couple of times, so we don't want to irritate him.

On the first point you raised, Mr. Discepola, I just spoke to the clerk. What happened was that the motion was tabled first.... We've had the motions for a week—

Mr. Peter MacKay: On January 30, Madam Chair, I notified you—

The Chair: So we brought it to the steering committee on the first or second day back last week. It was discussed at the steering committee and was on the table then. On Wednesday afternoon, I think, it was on the table for the full committee, but you and your staff person may have departed by that point. It was the last 10 minutes of last Wednesday's meeting.

What Luc and I have discussed is that whenever a motion is given to us—we had one today from Mr. Ramsay—we will undertake to circulate them directly rather than waiting for committee proceedings.

So we've clarified that, okay?

Mr. MacKay.

Mr. Peter MacKay: That was the first point, Madam Chair—in terms of notice, I don't believe we're into a situation. It certainly wasn't something I tried to spring on anybody—

The Chair: There is no question about that.

Mr. Peter MacKay: The issue raised by Mr. Discepola and the Reform member about the focus, for lack of a better word—I purposely worded it broadly with the goal of preventing future tragedies. I listened very carefully to the comments of Mr. Lee, and he knows whereof he speaks. I know he was breaking ground in terms of the Gilchrist case, I believe it was, where similar reports were given out in a modified way, and there's now a process in place that allows for committee members to see the full report with certain restrictions.

My point is that if we start this process now, with these two particular cases being the focal point, we can roll this into the broader view when we get into the CCRA statutory review. This would be a starting point. I also keep in mind the comments made by my friend in the Reform that this is a non-partisan issue. It's a crucial issue to our justice system, and we don't have any subcommittees presently sitting.

I realize this is a busy committee with a lot of extremely complicated and very important issues, but these types of cases are absolutely fundamental. I also keep Mr. Lee's comments in mind about the fact that this happened 10 years ago, but obviously there are still problems when this happens, and it is about accountability. If it takes resignations, replacements or changes in personnel, that may be necessary. That's brutal, but it may be necessary. If people aren't doing their job, they need to be brought into account for that.

The Chair: Thank you.

Mr. Telegdi, Mr. Maloney, Mrs. Finestone, and Mr. MacKay all want to speak.

Mr. Telegdi.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you, Madam Chair.

There's no question that the issue, as Mr. MacKay put it, is to prevent future tragedies. It's something that we are all very interested in. I think looking at these two cases would serve a very useful purpose. I think I'd be a little leery of having just Commissioner Ingstrup and Mr. Gibbs in front of us, because they really would not know the specifics of the case. They would be giving us secondhand information. If one of the issues we want to look at is the number of people on parole who are being supervised, obviously they'll tend to defend the status quo.

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Just to give some good news on the John Howard Society, it's quite possible to be an advocate for prisoners' rights, parolees' rights or what have you. It's not inconsistent with doing an enforcement function. I think it's important to keep that in mind because that happens with most people who are involved in the system. I don't think they would be any more compromised than a parole officer would be in carrying out odd functions if they aren't carrying out parole functions.

Madam Chair, there is no question that the whole issue of how we as a society deal with people on parole and how we address offenders is a vexing problem that has been evolving over time. I recall a big conference at the Royal York in Toronto. I think that was the first place I met Mr. Lee. It was a crime prevention and community safety conference. Many thoughts and strategies were put forth at that conference. That was back in 1993. There was unanimous agreement at the conference, which drew upon judges, crown attorneys, police officers, and people working within the system, about some of the remedies that are needed. The community safety and crime prevention program that will be coming on stream is a continuation in that regard.

So I would support looking at these two cases, but I think it's going to have much broader application as we look at the system as a whole. One of the things we have to keep in mind as we deal with the tragedy of the victims of today is that all too often the victims of today become the offenders of tomorrow. How can we break that cycle and reverse it, and how can we most effectively deal with the protection of society on the one hand and make sure we reduce the number of victims on the other? We must keep in mind that it's a very complex interrelationship.

I think it would be useful for us to have the kind of examination that's being proposed. It will serve us well.

Thank you, Madam Chair.

The Chair: Thank you.

Just so we're clear—I still have three government members to go—it seems we all agree. There doesn't seem to be any disagreement that we should take a look at this. The issue is the process, right? So we're over that hump.

Mr. Peter MacKay: Mr. Telegdi should know that it was Mr. Ingstrup and Mr. Gibbs who commissioned these reports, so they would be familiar, I would suggest—

The Chair: They are also the ones who are ultimately accountable.

Mr. Peter MacKay: Yes, I suppose it brings into view their accountability, but they were the ones who commissioned these reports in their respective chairs.

The Chair: Can I just get this straight? Is there anybody who thinks we shouldn't take a look at this?

Okay, so we're agreed.

Mr. Peter MacKay: Can we have a recorded vote?

The Chair: We will. That's your motion and that's the guts of what's in front of us right now. We need a process to deal with it. I'm just trying to get my head straight here.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): I would agree with your remarks, Madam Chair. I don't disagree with the substance of the motion. In fact, I'm very sensitive to it.

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However, in light of the schedule for April, the review of the CCRA, if we keep to that schedule.... The comments of Mr. Forseth and the comment and commitment of Mr. Discepola, as well as the interesting historical background given by Mr. Lee...I'm questioning whether the word is “premature” or “redundant” with respect to setting up a subcommittee. I think subcommittees are certainly worthwhile, but I would like to participate as much as possible in as many issues as possible. Timing is an issue. I'm not sure that another month and a half or so is going to be a real problem, and I think it's important to review the whole picture, the broader picture.

The Chair: Thanks, Mr. Maloney.

Mrs. Finestone.

Mrs. Sheila Finestone: Thank you very much, Madam Chair.

I think you outlined a process, as did Mr. Discepola, but I'm the only member of this committee who is not a lawyer and is not—

Some hon. members: No, you're not.

Mrs. Sheila Finestone: —familiar with the way the justice system works in this particular area. I know about youth protection, but I don't know how this works. I'm not keen to go into any kind of committee—or subcommittee, for that matter—until I know how the system works so that I can listen a little more intelligently. I think that's part of the job we have when we sit here.

I would like to suggest that we have—for those of us who are interested—at least some kind of a visit and and see what it is and how the system works so that we can be more sensitive to the kinds of information we're being given. My reaction to Mr. Telegdi is that if these two gentlemen do not have the answers, then they should leave before they even come before this committee.

The Chair: Okay, Mr. McKay.

Mr. John McKay: You're right, Madam Chair. This is a matter not of substance but of process, and my instinctive reaction is to go with Mr. Discepola's proposal. He presumably speaks with the authority of the government and can bring those witnesses before the committee.

I would ask that Mr. MacKay not drop his motion but that he adjourn his motion. Rather than dealing with the motion today, I would ask that he bring his motion forward after we've heard from those witnesses, with the possibility that the motion can be refined, either in the form of a subcommittee or a full hearing based upon the information generated either by the reports or by the witnesses themselves.

Finally, if we are going to hear from these witnesses, with a report that will be left in this room after we've read it...if this report is 40 pages long or 80 pages long, I sure as heck would like to have a chance to read it before I hear from the witnesses as opposed to reading it while I'm listening to the witnesses.

The Chair: You have an unedited version of it now in your office.

Mr. John McKay: Okay.

The Chair: I'm just talking about process here, and process is not my favourite thing.

We can have a vote on the motion, Peter. First of all, it seems to me we know that it's going to be unanimous, that we're going to agree with your motion. That's how it looks to me right now. Second, we then must have a process to carry out your motion. I'm suggesting to you that our steering committee—we have time on Thursday morning—sit down and hammer it out then. Then we get on with this thing. We really have one full motion on the table and the germ of another one, which is the process we're going to follow. Can you live with that for today?

Mr. Peter MacKay: Sure, if we have a recorded vote.

The Chair: We'll have a recorded vote.

The Clerk of the Committee: Do you want a recorded vote all around?

Mr. Peter MacKay: Yes.

The Chair: We're dealing then with the motion that's on the table, which is a motion that the Standing Committee on Justice and Human Rights conduct an independent review of the two reports we're talking about with the goal of preventing future tragedies such as the ones investigated in those reports.

We don't have a process. We just have a resolution to do that.

Mr. Discepola.

Mr. Nick Discepola: If you're voting on the motion as presented, Madam Chair, you're obligated to conduct an independent review. Does that mean this committee cannot do it if it's an independent review?

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The Chair: I think he uses the adjective to mean that we're independent. Don't you, Peter?

Mr. Peter MacKay: We're at arm's length from both of these two agencies.

The Chair: The committee will review. Delete the word “independent”. So the motion now reads that we will conduct a review of these two reports with the goal of preventing future tragedies such as the ones investigated in those reports. All right?

Mrs. Sheila Finestone: As a point of information, are you not going to add Mr. Discepola's recommendation?

The Chair: In order to get on with things and have a process we can all live with, I want to give Mr. MacKay an opportunity to participate in how we would develop that process. We have an offer on the table that will give Mr. MacKay an opportunity to maybe talk to Mr. Lee about how these things happened before. We just won't have resolved the process, that's all, until the steering committee deals with it.

Mr. John McKay: I don't understand where you're going with this, Madam Chair. If I vote against this, the presumption is that I'm against the conduct of a review with the goal of preventing future tragedies. All I'm saying is I don't know whether that's appropriate, and I won't know whether that's appropriate until I hear from the witnesses and read the reports.

I think Mr. MacKay is really on to something here, but he's jumping the gun a little. That's all my vote against this motion will mean.

The Chair: Okay, let's stop for a minute.

What I heard everyone on the committee say was that they want to take a look at this problem. What I didn't hear everyone on the committee say was that they were in agreement as to how we should do it. I'm simply trying to build a little consensus here. If we want to look at the problem, let's vote on whether we're going to look at the problem or not, and then let's let the steering committee, which is the smaller group, try to hammer out a process that everyone can live with so that we can do it.

Mr. John McKay: Looking at the problem and voting on the substance of the motion are two separate issues. I have a problem looking at the problem, but that's not what the motion says.

The Chair: That's what the motion says.

Mr. John McKay: It says conduct a review.

The Chair: The extent of the review is defined by the process. That's all.

Mr. Nick Discepola: Why wouldn't you do this as part of the CCRA review, at that time?

Mr. Peter MacKay: What prevents us from doing this at the time of the CCRA review, rolling that information into it? Let's get it started. That's my point.

The Chair: That's the whole point. All we're saying to the Canadian people here is that we see that there's a serious problem and we want to take a look at it. We haven't said when or how, and I think Peter's—

Mr. Peter MacKay: We'll do the fine tuning of the process and set timetables and answer some of the questions that Mr. Forseth has posed.

Mr. Nick Discepola: I would like to propose:

Therefore be it resolved that the Standing Committee on Justice and Human Rights include as part of its CCRA review a review of these two reports with the goal of preventing....

The Chair: Well, if you do that, then you're defeating the purpose of your proposal.

Mr. Nick Discepola: No, I'm not. Ours can stand on its own merits. We can call in the witnesses any time we want. They're prepared to come any time we want.

What I'm against is establishing a subcommittee just to review these two reports.

The Chair: That's exactly what we haven't done, Nick. Look, most of the people on this committee, including government members and, I'm sure, including yourself, feel this is an important issue that we want to deal with. All we're doing right now is saying that. Then the steering committee will determine how we're going to do it.

Once we sit down at the steering committee and go through all of our obligations, it may be that we can't deal with this until the CCRA comes up anyway and we'll fold it in. It may be that we will decide we want to strike a subcommittee, which, quite frankly, is in my view problematic for this committee, given our workload. But it may be that we'll decide that we can't deal with this until the cows come home, or that we want to hear the two witnesses and learn a little bit about the parole process and the correctional process before we do the CCRA and fold it in.

There are 1,000 options here, but if you limit them even more, you're going to end up with a committee where nobody is happy, whereas if we wait until Thursday morning and try to hammer it out, we may be able to cut a deal.

Mr. Jack Ramsay: I would agree with that. With respect, I think Nick's suggested motion was dealing with the process, and we don't want to deal with it now. Let's think about the process—

The Chair: I think we need some time to think about it.

Mr. Jack Ramsay: Of course, I don't want to discuss process, but we're kind of getting drawn into that. I want to stay away from that. I would like us to go forward with the motion amended as it is to determine whether or not we have the support of the committee to review these two reports. It may end up as part of what Mr. Discepola is talking about or it may not, but that's not what we should be deciding on today. We should be looking strictly at the motion that's presented to the committee.

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The Chair: Go ahead, John.

Mr. John McKay: If that's what you're doing, then the motion should read:

Therefore be it resolved that the Standing Committee on Justice and Human Rights refer to the steering committee the question of the conducting of a review of those two reports with a view to preventing future tragedies.

That's what you're doing. You're putting it to the committee and then you're going to come back to us on Thursday morning and say, “We suggest that this issue be dealt with, bang, bang, bang”. That's what you're doing. It's a motion to refer to the steering committee, not a motion to commit us to conduct a review of those two reports.

The Chair: John, with respect, as chair, I would interpret this motion as meaning the following: that we are committing ourselves to take a look at what happened to those two guys who got out on parole and killed a bunch of people. We're committing ourselves to do that in this motion. I then, as chair, would say to you, let's get it to the steering committee so we can get a process here, because we have a lot of work to do. That's all.

If this motion passes, I guarantee you Peter MacKay will say on the record right now that we haven't obligated ourselves, nor has he, to any particular process or any way of dealing with it.

Mr. Peter MacKay: That's right. Absolutely.

The Chair: And we always have to do that, because we always have to decide as a committee how we're going to handle things. Unless you just want to sit here all the way through lunch and Question Period and hammer out how we're going to handle it. The steering committee is a better vehicle to do it; that's all.

Go ahead, Nick.

Mr. Nick Discepola: What happens if the steering committee doesn't have a consensus?

The Chair: Then it has to come back to the committee and we'll hammer it out.

An hon. member: Then we'll go through lunch.

The Chair: Yes, then we'll go through lunch. But give it a chance. Let's have a chance to work consensually on one or two things.

Mr. Andrew Telegdi: And you'll have Nick at the steering committee.

The Chair: Nick is at the steering committee, yes.

Mr. Andrew Telegdi: Can we get a vote? Can we put it to question, Madam Chair?

The Chair: Okay. I call the question on the motion, which is amended to delete the word “independent”.

Mr. Peter MacKay: Yes.

The Chair: The motion then is:

That the Standing Committee on Justice and Human Rights conduct a review of the two recent National Parole Board/Correctional Services Canada Board of Investigation reports with the goal of preventing future tragedies such as the ones investigated in those reports.

We'll vote on the amendment first to delete the word—

Mr. Peter MacKay: The amendment is unanimous.

The Chair: Okay, it's unanimous on the amendment. We'll have a recorded vote on the main motion.

(Motion as amended agreed to: yeas 11; nays 0)

The Chair: There's going to be a steering committee meeting on Thursday and this is the only thing on the agenda. We'll get a notice out of the committee.

Mr. Nick Discepola: I have a point of clarification.

The Chair: Yes.

Mr. Nick Discepola: I'm not a permanent member of the steering committee, but I am led to believe I've been invited.

The Chair: You will be there for that. You will substitute for Ms. Bakopanos for that.

Mr. Nick Discepola: All right. Thank you.

The Chair: This meeting is adjourned.