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]

Thursday, February 12, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Order.

We're back on Bill C-3, an act respecting DNA identification, and a review as well of Bill C-104 from the 35th Parliament with respect to forensic DNA testing.

We have with us today, from the office of the Privacy Commissioner of Canada, Bruce Phillips, who is the Privacy Commissioner, and Eugene Oscapella, who is an adviser to the Privacy Commissioner of Canada.

We were to have Jack Walsh. Will he be here later?

The Clerk of the Committee: He's going to be here later.

The Chair: Mr. Phillips, you've been here many times. We'll be happy to hear your presentation, and then we'll have a few questions.

Mr. Bruce Phillips (Privacy Commissioner of Canada): Thank you, Madam Chair, and let me thank you for this opportunity to come to the committee to say hello to some old familiar faces here and hello to some that I haven't had the privilege of meeting previously.

This is an important subject. We have appeared on this subject before. We did respond to the Bill C-104 that died in the last Parliament. In essence, our position has not changed with the reintroduction under Bill C-3. We have one fairly major problem with it and some other, less important, aspects of it, and we'd like to cover them all.

I would like to take just a moment, though, for committee members here who are new to the privacy issue, to whom I have not yet had the privilege of speaking, at least to go over briefly the broad issue of privacy as a value that gets beyond the issue of law enforcement.

For a thorough examination of the value and some options for its defence, you could do no better than to read the report that was approved last year, just before the dissolution of the House, from the human rights committee that was chaired by Sheila Finestone. That committee had done a couple of years' work on privacy and produced a report called Privacy: Where Do We Draw the Line? It was a wonderful document for a parliamentary committee. It got almost no attention in the crash and clamour of the events of the day, but for anybody examining this subject it is very useful background information.

Certainly the timing is right to be thinking about this, both in this committee and elsewhere in your responsibilities, because privacy is now coming forward in a number of areas and dimensions as a front-line issue.

The Government of Canada is now working on a piece of legislation that would bring privacy law to the commercial world as well as the public sector. Important work is now going on involving federal and provincial and other entities to build a national health informational exchange, which bristles with a lot of privacy issues but is an important new facet of the use of personal information. And there are things such as the bill we're now dealing with.

All of these things represent, for legislators particularly, a very important question, and that is the extent to which citizens are going to be put under increasing measures of surveillance on behalf of various public causes. We already live in a society that's heavily under surveillance, and if you want to talk about issues that I personally find objectionable, I would refer you to the current debate over the use of customs declarations for unemployment insurance enforcement purposes.

Privacy isn't just an informational right. It pervades every aspect of our daily lives. It's at the heart of individual autonomy and liberty.

Former Justice Gérard La Forest said in one of his judgments that privacy is at the heart of liberty in a modern state. It's an individual right, but it is also a societal right. Its value to society as a whole is great. It's fundamental to maintaining a civilized society, because it measures exactly the degree to which we are prepared to respect the autonomy of each other. If you do not respect my privacy, you do not grant me the liberty I would claim as a citizen of a free country. And the same argument applies to all of us.

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These definitions, which have been historically accepted and worked on for centuries.... You will find privacy at least tangentially seen as a value in the search and seizure provisions of Magna Carta. That's how far back this goes in legal definitions. The issue these days is even more clamant because of the onrushing impact of information technology. So we're dealing here with one aspect, namely DNA, that is a very important civil rights issue.

Genetics is certainly a fascinating topic generally. In its law enforcement context it is obviously very, very important. It can be used as a great tool for improving law enforcement and for finding and convicting people who have committed crimes. It also offers the prospect of liberating and exonerating people who have been suspected but who have not committed crimes. Certainly that has been the case for Milgaard and for Guy Paul Morin. No doubt there will others.

The issue that's in front of us is how to use this tool as a sharp, precise scalpel to convict people guilty of serious violent crimes. It's not the kind of tool that should be used in every conceivable law enforcement case, because of the enormous implications of the misuse of DNA evidence.

If our overriding goal is a totally efficient, perfect, bullet-proof, law enforcement system, I guess you can do a lot of things which would bring that about, including unrestricted use of DNA evidence. But they would also sweep away a lot of the bedrock of the civil rights which are part of our legal system. I know that's not your goal, and it's certainly not mine. We have to strike here a balance between competing interests in society, those of law enforcement to protect our personal safety, our physical safety, and those of the human rights which have been embedded in and founded upon centuries of human interaction.

I draw to your attention that an example of the way people can go too far with this was the suggestion by the United Kingdom metropolitan police commissioner who proposed during a debate in the British House of Commons that every male person at birth should be required to give up a DNA sample. The commissioner there said it would undoubtedly be expensive, but it would be a development that would provide considerable benefits to the police.

No doubt it would. But it would also be stamping at birth the assertion by the British Parliament and British society that they consider every male child a potential suspect for a violent crime. I don't think we want to go that far; and we haven't gone that far.

I think our approach to DNA evidence in this country has been balanced, restrained, and sensible. In my view, and by and large, Bill C-104, now Bill C-3, struck a pretty workable balance between law enforcement and privacy interests. It's not without its problems, though, and I would like to deal with those now. Forgive me for the preamble, if you like.

The question here is to what extent a DNA data bank would advance the cause of law enforcement while at the same time providing reasonable respect for civil rights. It takes the bill one step farther past the 1995 one, because although that provided a system for the obtaining of DNA samples under warrant in certain circumstances, it made no provision for the storage or retention of those samples.

To me the questions are these. Does this bank offer the prospect of making our streets safer? Are the risks inherent in its creation sufficiently justified to justify any risks? Will it be constructed in a way that allows for what people are describing these days in the technology world as “function creep”?

That's not a very elegant phrase, but I think it captures the essence of it. It has been the experience in the Government of Canada, as in many other places, that when you create data banks, technologists, scientists, and researchers ultimately find other uses for those banks beyond those for which they were created in the first place. The way it is proposed in the bill, I see a serious danger of that happening in this particular case.

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If you want a practical example of what I mean by function creep, let us take the case of Revenue Canada's files. Revenue Canada of course has a great deal of personal information about most of us, at any rate those of us who file income tax returns. They have very strict provisions in the Revenue Canada statutes to protect the confidentiality of those records from misuse. Now, I have to tell you, more than 20 exceptions to the rule of confidentiality have been drafted between Revenue Canada and other departments of government for unrelated use of income tax information. I don't think that fact is widely known. Certainly in each case justification has been produced for some unrelated use of the information. Nevertheless, that constitutes, in my view, function creep that is not visualised by the people when they're asked to give up that information for specific income tax purposes—which of course is the heart of good privacy legislation.

Now we have a proposal here to provide for storage and retention of DNA information. We do not have, and I do not have, an objection to that proposal if it goes only that far.

The difference between a sample, of course, and a DNA fingerprint is the difference that is measured between myself and the authors of this bill. If the DNA bank is to contain the fingerprint information, which is all that is really useful for purposes of solving and detecting crimes, but will not contain the original sample from which the DNA fingerprint is taken, fine.

If it contains the sample, though, we see a serious danger of function creep. It has happened in every other place where data banks have been compiled. I see no reason why it wouldn't happen here.

I would much prefer to see a DNA bank that was confined solely to the DNA fingerprint that is developed from it and that the samples be destroyed.

If there are members who feel that this would inhibit in some way, down the line in some undefined way, effective use of DNA evidence in crime solutions, let us put into this bill a review process in less than a five-year term, say three years. We could come back and have a look at that, and if the law enforcement authorities argue that this is somehow impeding effective use of DNA evidence, we could take another look at it then. My argument is, let's proceed cautiously and make the first move first and not the second move first.

I presume that in earlier discussions of this you have already been informed, those of you who haven't had an opportunity to do your own reading, about the many areas of DNA information that are capable for other uses, such as conducting profiles intended to identify people with supposedly criminally disposed personalities, as might be indicated by DNA research. There is a whole vast array of questions of that nature that DNA science is probing into. I myself cannot believe that before long researchers, particularly in the field of criminology, would not want access to those DNA samples for the purpose of doing that kind of scientific plumbing work. That's something we ought to worry about.

For example, not too long ago there was the famous case of the XYY DNA issue, in which some scientists in Europe argued that people with the XYY chromosome in their genetic make-up were people with a predisposition to criminal activity. At the time this was widely accepted as being a scientific truth, established fact. A great deal of agitation began among law enforcement authorities around the world to get this XYY syndrome. They could put bells on people who had the XYY syndrome, like lepers, so we'd always know where they were. But subsequent and more thorough science proved that theory to be absolutely without foundation.

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It is very easy here to make serious mistakes with long-lasting harm to individuals.

There is another aspect to this bill, more what is not in it than what is in it, which I think needs clarification. That is what is being done about the issue of people who as good citizens volunteer DNA samples to help law enforcement officials. There is no code here for disposing of volunteer samples.

Let me give you an example of the kind of problem. In Vermilion last year the RCMP asked citizens in the community, males, to give DNA samples to help them eliminate suspects and possibly track down a person who is wanted for a serious sexual offence. Some hundreds of members of the male population of Vermilion did so, and of course they were exonerated. I don't know whether they ever did find the person they were looking for, but in any case that would have been one out of several hundred.

In my opinion those people are entitled, as soon as their exoneration has been established, to have all evidence of that sample and anything derived from it destroyed. So far the policy of the RCMP has been to destroy the samples but keep the analyses. In other words, they have kept the fingerprints of some hundreds of people who as good citizens, in response to a community need which they understood, came forward, gave the samples, and had been proved absolutely unconnected in any way with the crime the police were investigating. Their fingerprints have been retained.

I say that is wrong. Not only is it wrong, but it is less protection, if you like, than is already accorded to people who, having been suspected of crimes, may be required under warrant to give a DNA sample. If their innocence is established by the sample, the law requires that the entire thing, including the fingerprint, be destroyed. Should we not treat volunteer, public-spirited citizens with at least the same treatment? I think that is a pretty unarguable case, and I would like to see something in that bill covering that point.

You may also want to give some consideration to the range of offences covered. I won't belabour this very long. It's a very arguable case, and I concede the point.

The bill does allow a judge to order the taking of a DNA sample from someone convicted of what can be quite a minor offence, such as common assault. That may not be such a minor offence, but in fact it is a frequent offence. In 1995 about 85,000 people in this country were charged with common assault and about 48,000 were charged with break and enter. It includes some offences called “secondary designated offences”; and I wonder if we're not stretching this a bit too far.

The original 1995 bill provides for the taking under warrant of DNA samples for what I think can broadly be described as serious crimes, or crimes involving violence against the person and so on. This opens the door to a whole host of things that in my opinion are at least marginal. I invite you to take a look at it.

There have also been some proposals before this committee for expanding the collection of samples and their use beyond that proposed in the bill. I have some real concerns about some of those proposals.

There has been an argument that they should be treated in just the same way as fingerprints. Fingerprints are taken routinely by police upon arrest for almost all offences. I don't think we should go that far with DNA evidence. It is not like an ordinary manual fingerprint, which is a static thing. DNA evidence is capable of being analysed and reanalysed for a great many different purposes. I think its use has to be strictly limited to identification purposes for the solution of crimes.

I don't know that I want to go any farther than that. Do you think I've missed anything? I want to give the committee ample opportunity to put questions.

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The Chair: Thank you.

Did you have any comments, Mr. Oscapella?

Mr. Eugene Oscapella (Consultant, Office of the Privacy Commissioner of Canada): No, I'll wait on the questions, Madam Chair.

The Chair: Mr. Ramsay, I'm going to start with five-minute rounds, because we do have another witness coming.

Mr. Jack Ramsay (Crowfoot, Ref.): I want to thank Mr. Phillips for his presentation, and of course his colleague for attending.

There are two areas that I'd like to touch on and cover before you leave. One has to do with the rights you speak of, the privacy rights. Of course in a democratic society we should have those rights, but under what conditions should those rights exist?

I remember asking a witness that appeared before this committee on another bill, some time ago, this simple question: what right does an individual have while in the act of murdering an innocent person? I didn't get an answer for that question. Would you have an answer to it?

Mr. Bruce Phillips: I can tell you one right they don't have. They have no right to go around murdering people.

Mr. Jack Ramsay: That I know, but they're doing it.

Until they launch their deadly attack, they've got all the rights that you and I have. Once they do that, what rights do they lose?

Mr. Bruce Phillips: Well, those that are prescribed by law. They still have the presumption of innocence until proved guilty and, as a person presumed innocent, they exercise those rights until such time as they are found guilty or convicted or confess to the crime. That is the bedrock of a system which I think you couldn't do without.

The mere suspicion that somebody has committed a crime does not, in my view, constitute sufficient argument for depriving them of their civil human rights.

Even upon conviction, of course, some of your rights are automatically taken away. Your right to liberty, your right to freedom from search—a number of rights of that kind are automatically forgone once you are convicted of an offence.

Mr. Jack Ramsay: Do you think that people in the position of Clifford Olson and Mr. Legere and others should come under this statute, that the police should be able to take a DNA sample from them in order perhaps to clear up unsolved crimes where DNA evidence has been left?

Mr. Bruce Phillips: You have put your finger on an interesting little complication in the bill, which is to say, at what point does it become law?

If this bill had been in place at the time of Mr. Olson's arrest, there is no question that a DNA sample would have been taken. If it had been in effect at the time of his conviction, he would have been required to give up a sample.

The point at which this one is to take effect and what kind of retroactivity might be built into it I would have to leave to the judgment of Parliament. I don't have a fixed, firm view on that. To tell you the truth, I haven't really given it a lot of thought.

Mr. Jack Ramsay: Could I ask for your view in another area then?

There is no question that if technicians wanted to get a sample of your DNA, they wouldn't have to follow you around for very long before they would get it. If I blow my nose and leave it to one side in a kleenex, they would have that. So I'm wondering whether or not our attempt to provide the integrity of the data bank that this bill is creating isn't rather redundant in terms of, perhaps, the apprehensions that you and others have articulated before the committee, and are articulating across the country as a result of this new legislation.

Our witness yesterday pointed out that just taking a drink out of a glass will leave a DNA sample on that glass. If that's the case, and I believe it to be true, then I question whether any safeguards we could introduce to protect society from the very things you have talked about here, and rightly so, don't carry with them a degree of redundancy, because anyone who wants my DNA can get it in a matter of hours if they follow me around.

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Mr. Bruce Phillips: Well, it's a pretty interesting question, as your questions customarily are, Mr. Ramsay. I think you think a lot about these issues, and in a pretty profound way.

I would have to say that as I understand this process, it then becomes a question of what evidence law enforcement officials are permitted to introduce at a trial, or to put on file. The way the system works now, they can require a sample under warrant, upon conviction, if this bill becomes law. Your argument seems to me to be, well, if they go around on their own bat and pick up the glass you left behind in the pub, they can take that down to the police court and enter that in evidence. I guess the lawyers would have a pretty good day, with the meter running, arguing whether that would be admissible evidence, given the thrust and spirit of the DNA legislation already on the books and what is contemplated here. I would have to duck that one, because I don't know how it would all turn out in the mind of a judge who had to argue admissibility.

The other issue, of course, is to what extent police resources could be devoted to this kind of thing. They would have to have an awful lot of policemen to follow people around like that. It seems to me to be an improbable exercise.

But if they were following around somebody who was a suspect in a crime, someone they had reasonable cause to believe had been involved, they could go to the judge and get a warrant and force a sample. Any time they are following somebody they really think has done something, they won't have any trouble getting a sample. They just go to the judge and say, here is what we have, and we have reasonable cause to suspect this person; and they have a warrant.

Mr. Jack Ramsay: Only if it falls within the category of a crime.

Mr. Bruce Phillips: Only if it falls within the designated offences, yes.

[Translation]

The Chair: Mr. Marceau, five minutes.

Mr. Richard Marceau (Charlesbourg, BQ): I would like to say at the outset how much I like what you had to say. I had already read your report on Bill C-104, which was presented in the last Parliament.

I have several questions I would like to ask you. The first is about clause 9 of the bill, which says that in some cases—here I am speaking about the quashing of a conviction or a discharge—the information should be rendered inaccessible rather than erased. That means that there would be some information floating about somewhere in the bank. While it would not be linked to Mr. X or Ms. Y, it would nevertheless be there. What do you think of that? Don't you think it would be better to completely erase this information, which, in any case, is no longer useful?

[English]

Mr. Eugene Oscapella: My understanding—and again, you have people here from the Department of Justice, and they can address this issue—is that in some cases it could not actually be erased, because it's in an electronic database, but it might be possible to unlink the identifying information from the sample itself. If that's the case, if you really have delinked any connection between the DNA analysis and a given individual, then for all intents and purposes you may have resolved the privacy issue as far as we are concerned.

Again, I do recall speaking to the people from the Department of Justice about this. They can give you a fuller explanation about this.

[Translation]

Mr. Richard Marceau: So you are not at all bothered by the fact that the information is still there?

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[English]

Mr. Eugene Oscapella: They are there, but if they cannot be linked in any way, then there's no real privacy danger as such. So that accomplishes the goal. In a world of electronic files, where it may not be absolutely possible actually to eliminate the record, that is the next best thing. And I believe that is quite satisfactory from our perspective.

[Translation]

Mr. Richard Marceau: My second question is about the possibility of passing on information to another country or to another police organization such as Interpol, the FBI, and so on. I see nothing in the bill that requires the same privacy guarantees of these countries or organizations that we try to provide here in Canada. Consequently, would this not mean that people do things by the back door that they are not supposed to do by the front door?

[English]

Mr. Bruce Phillips: I think you've identified a serious problem with all kinds of international agreements besides this one. The Privacy Act itself confers authorities on the federal government to close from access by Canadians, for example, some material covered in international agreements, and it allows it to disclose to third parties—that is, other countries—personal information which normally would be protected by the Privacy Act. There is nothing in our statute which stipulates that such exchanges of information must be on the basis of the receiving country having privacy laws similar to the protections offered by our own statute.

This bill is no different in that respect. It's a problem with all kinds of international exchanges.

I think you've identified a good question. I think I have to say as a practical matter, though, the exchange of information between law enforcement agencies is very important and useful for the protection of society. Unhappily, not very many states in the world, excluding New Zealand, Australia, western Europe, and North America, principally Canada, have good privacy statutes. Therefore to insist on that kind of condition would exclude a number of countries from exchanges of this kind. But it would be a useful condition to apply to all these exchanges to insist that at least the information covered by the agreement be treated in that fashion. I agree with you, yes.

[Translation]

Mr. Richard Marceau: Would the Office of the Privacy Commissioner of Canada be prepared to do an annual audit? In English, there is a reference to an annual audit of the bank's operations, to ensure that the bank is functioning properly in accordance with the guidelines that will be set out in the act.

[English]

Mr. Bruce Phillips: My office will do what Parliament asks us to do, yes, sir.

[Translation]

Mr. Richard Marceau: But would that be a good idea?

[English]

Mr. Bruce Phillips: I think annual at this stage of the game would be a bit premature. I don't think you would get enough experience in the course of one year to make a good, informed judgment on the operation of such a thing. But perhaps a three-year audit would be a good idea.

We do have limited audit authority now, under our own act. But I think the kind of audit you envision here would be quite complex and time and resource consuming. Still, those things taken into account—and I'm sure this committee would help us in those methods—yes, sure, we would do it if you wanted us to, absolutely.

[Translation]

Mr. Richard Marceau: The bill gives the commissioner in charge of the bank enough discretion to allow him to provide access to the information bank. As the Privacy Commissioner, could we ask that you be consulted about the people who shouldn't have access to the bank to avoid situations in which absolutely anyone could have access to the bank at any time at the discretion of the commissioner in charge of the bank?

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[English]

Mr. Bruce Phillips: Let me try to deal with it in this way, and I know Mr. Oscapella will pay close attention to my answer in case I stumble here.

My understanding of the bill is that quite specific restraints are imposed on any access to a data bank. As a consequence, the commissioner's authority would be quite limited. Certainly no exercise of his discretionary authority should exceed the spirit, as well as the letter, of any restraints that the bill imposes.

I'd like to have another look at that.

Eugene, have I got that right?

Mr. Eugene Oscapella: I don't have the provision in front of me, but often we are supposed to be notified at the office of the conditions or of certain data matches, or whatever. It depends on if you're speaking just of notification or if you want to speak of approval of a release of information, because sometimes the notification helps us to understand what is being done with information, helps us to understand the flow of information within and outside of government. But it gives us no power to do anything about it.

So are you asking for us to have a power, perhaps, to regulate the flow of that information?

Mr. Richard Marceau: Yes.

Mr. Eugene Oscapella: I would leave that to Mr. Phillips to answer.

Mr. Bruce Phillips: No, I don't think the privacy commissioner wants to pre-empt the decision-making power of responsible heads of departments of the Government of Canada. It is impossible to define the innumerable and complex requirements placed on departments for information.

They are thus given—all of them, even in the Privacy Act—a considerable amount of discretionary authority with respect to disclosure, and they are answerable for those disclosure decisions.

If a departmental head decides that the public interest in a particular matter outweighs the privacy interest, in those circumstances he or she can disclose personal information without consent.

Given the impossibility of defining “public interest” in a way that would suit all of the innumerable kinds of public interest that arise, I don't see how you could deprive them of that kind of discretionary authority. They are answerable for it. When they make such a disclosure, they must notify my office. At that time we are entitled to make any observation we like about the nature of the disclosure and whether we think the person has gone too far. I do not see that you could limit a department's authority without effectively obstructing their ability to do the job.

I hope that answers your question.

Mr. Mark Muise (West Nova, PC): I'd like to start by thanking Mr. Phillips, and our other guest as well. I'm finding this to be very fascinating.

Maybe this is just an observation, but, Mr. Phillips, you made a comment earlier about the danger of going too far with collecting data and the dangers that could arise from that. There's also the fact that if a sample is given, having samples collected can take away some people's right in certain cases, but in other cases that collection can help return some people's rights, especially those who have been wrongfully convicted.

I'd like to get your comment on that.

Mr. Bruce Phillips: Well, you're quite right. DNA evidence works both ways. It can identify the guilty and it can identify the innocent as well. So can fingerprint evidence, for that matter. The part of DNA analysis that is useful to the police is the identification pattern, and no reasonable person would object to its use as a law enforcement tool, and we certainly don't.

We supported the bill that came up in 1995. Absolutely right, yes.

Mr. Eugene Oscapella: Of course you don't need this legislation to exculpate somebody, to prove their innocence. We didn't need DNA legislation to exculpate David Milgaard or Guy-Paul Morin. So we're really speaking of the other side of the equation.

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Mr. Mark Muise: Many people in the law enforcement community are concerned about the timing of DNA collection. Many groups fear that accused criminals, fearing DNA collection upon conviction will lead to other charges, will simply not show up for trial. Figures show us that around 66,000 have jumped bail, basically. While privacy rights are important, what assurances does the privacy commission have that delayed testing will not contribute to a higher flight risk among criminal suspects?

Mr. Bruce Phillips: That's a good question.

There might be cases where a person facing the possibility upon conviction for one particular offence would jump bail because he or she alone is aware that he or she has committed other offences a DNA sample might reveal. How often that would be likely to occur is a good question. No evidence is yet at hand on that issue. Later you will have justice department witnesses who can tell you.

I would say this much. Given the existing ability of the police to obtain warrants to obtain samples under warrant for anybody suspected of a serious or violent crime, it seems to me that would narrow that opportunity almost to insignificance.

Let me put it this way, hypothetically. A person breaks into a house and is caught in the act. He doesn't have time to get up to the bedroom to finish the business for which he came earlier. So there's no DNA evidence of any kind left at the scene.

The police arrest this guy running away. They say, gee, we think that's the bird who has been.... If they have reasonable cause for the ten other cases they think this person might be involved in and have a reasonable argument, the judge will produce a warrant on the spot. They don't have to wait for a conviction.

I think that would cover a great many of the cases you have hypothetically identified. To be fair, we would have to expect that at some point there might be somebody who would jump bail in circumstances of the kind you describe. But I would think, given the very broad collection rights the police now have, that would not happen very often.

It really boils down to this. How far do you want to go in abridging these rights to cover the occasional slippage? We cannot have perfect, 100% reliable law enforcement and crime detection without, in my opinion, giving up too many of our ordinary civil rights.

There are a great many unsolved crimes now which don't involve DNA evidence. We accept that it is an imperfect world. One of the reasons it is an imperfect world is that we insist on preserving some basic rights from erosion.

That's about as far as I can go with that. Yes, I guess we would have to say sooner or later something like that might happen. But it seems to me, to repeat myself, given the rights of collection now already put in the hands of the police, they don't need that additional authority, no.

Mr. Mark Muise: Proposed section 487.055 of the bill would allow a court order for DNA analysis of previously designated dangerous offenders as well as those with multiple convictions for sexual offences who are serving federal sentences. Unfortunately, this proposed section does not allow for the collection of DNA samples from murderers sentenced to life, such as Clifford Olson. Last week the Solicitor General indicated a willingness to change the scope of DNA collection and analysis from convicted offenders. What concerns would the privacy commission have in broadening the scope of DNA collection to include convicted first-degree murderers?

Mr. Bruce Phillips: I think we touched on that in my discussion with Mr. Ramsay.

Retroactivity of this kind of thing is a good issue. Personally—and I speak for myself here, because I have not debated this with my colleagues at any length—I do not see anything wrong with getting Clifford Olson's DNA sample, if that's what you're asking me. But it certainly has to be done by a lawful process. There is not one in existence now.

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If you as parliamentarians feel that this is a loophole you want to plug, from this particular privacy commissioner you will not get much of an argument. To me, it seems to be reasonable.

I invite Eugene to comment. If you take exception to my observations, feel free.

I say this because he is a consultant in my office and is not answerable to me for his private views. I give you mine.

Mr. Eugene Oscapella: Essentially I think my views, not surprisingly, are near those of Mr. Phillips. It may be a healthy thing to do. There may be circumstances....

The wording of this section may be too narrowly construed, but I remind you that in many cases murderers are among the least likely to reoffend. So that may not always be the best example. Of course, being a serial killer, Clifford Olson does not fit into that category.

The main objection you may get is the charter arguments. Again, you can discuss these fully with the Department of Justice people if you like. We're offloading a lot onto them, but they are the experts in some of these constitutional issues.

Would the retroactive taking of a sample from somebody be considered a breach of the charter, section 7 or 8? Would it be considered an additional punishment? In this case there might be some charter implications if you're tacking on a punishment after the time when the offence was committed. Those are questions that I would suggest you should ask the representatives from the Department of Justice.

Mrs. Sheila Finestone (Mount Royal, Lib.): I'm just so pleased to be here and listening to Mr. Phillips, who I have always found to have a fund of constructive analysis of laws that come before us.

I've heard Mr. Phillips in this matter. We've had several studies on DNA.

I heard your response to Mr. Ramsay, and I found that extremely interesting. I have some concerns about not being able to have retroactive use, in the same way as you have retroactive use of fingerprints.

In today's changing society and with new high-tech procedures, I think it's vital to be able to use those tools that could be effective, notwithstanding the fact that I understand fully well that once your privacy information of your human genomes is known and out there, you can't recover it. But if there are proper walls—kind of firewalls, if I may use that ugly term—and strong prevention of function creep within the bill, I have no objection to criminals who are behind bars for serious offences that are defined within this bill.... I take note of the ones that you feel are too broad, and you may have a good point there. If they fall within the kind of criteria that are potential.... I mean if they just don't belong in our society. I don't know why there is a reluctance to think of self-incrimination and retroactivity and not having the rights.

Maybe you have to go back to the courts or to the privacy commissioner, who's now going to have a great big budget in research—because if you don't, don't accept it—to do this kind of work, get the right to examine.

A man's been in jail for ten years. So what?—if he killed a whole bunch of people or did some very criminal things to this society. We then know that we have found the man who has been responsible for the other acts. You can't kill him more than once anyway. And you're not going to kill him; you're going to keep him fed and housed and clothed by the state. But you can wipe a crime off the scene.

Maybe I'm sounding very, I don't know, right-wing right at this moment, with all due respect to my colleagues.

The Chair: That ought to scare you.

Mrs. Sheila Finestone: That's the way I feel about people who commit heinous crimes.

The Chair: You should be crossing the floor.

Mrs. Sheila Finestone: Cross the floor? No. But it's part of my—

Mrs. Brenda Chamberlain (Guelph—Wellington, Lib.): We're just trying to hold you back.

Mrs. Sheila Finestone: Seriously, on the self-incrimination and the retroactivity and reverse onus and all that business, do you really think that we have to be very concerned about that in the case of a serious criminal who is already in jail?

Mr. Bruce Phillips: I thought I made my personal position reasonably clear on the matter.

Mrs. Sheila Finestone: I heard you.

Mr. Bruce Phillips: I merely say this: whether the person is in jail or out, there has to be some reasonable cause for investigating that person's activities beyond the crime in question. That is the fundamental protection of citizens in their relationship to law enforcement, that the police cannot use their very heavy investigative authorities unless they have some reasonable cause. So if I'm in jail, even if I've committed some heinous crime, the argument of reasonable cause should apply.

• 1630

What do you do with a person who's arrested and charged and convicted of a crime? You suspend all that person's normal civil rights. They go to jail. They have no liberty. They're exposed to constant surveillance. They have no right against the charter provisions of search and seizure. That's all gone. But to investigate them for a whole lot of other crimes.... I think the argument of reasonable cause does apply.

To a certain extent, that's abridged in this bill, now that I think about it, because upon conviction you will be required, under this very broad range of offences, to give a sample, which of course the police naturally will use immediately to match up against samples left at crime scenes of unsolved crimes.

I presume that the only probable cause in a case like that would be the fact that the person's been convicted of an offence.

So they have that right now. So the only question you—

Mrs. Sheila Finestone: Is that functional creep backwards? That's my first question.

Mr. Bruce Phillips: No, because—

Mrs. Sheila Finestone: Secondly, let's suggest for a moment that I'm David Milgaard's mother.

Mr. Bruce Phillips: No, it's not function creep.

Mrs. Sheila Finestone: He's been convicted. He's guilty. He's in there.

Mr. Bruce Phillips: Yes.

Mrs. Sheila Finestone: Well, why shouldn't we, with reasonable cause, go to you—I've just given you a whole new job—and have the right to this kind of sampling and this kind of testing?

Mr. Bruce Phillips: In the first place, it would not be me who wants the authority; it would be the police.

I told you that I'm ambivalent on this subject. I think of the Clifford Olsons of this world. Lamentably, if you read in the supermarkets, there are too many people like that running around. Naturally, who's going to object in the case of Clifford Olson?

But Mr. Oscapella and the justice department people who will follow me will raise a charter question that troubles them about this.

I have only a personal view here. There is retroactivity involved here which may be considered a modification of punishment applied by a duly constituted court. If that's what you want to do, then you'll have to deal with that in this bill.

I would argue that, given the retroactive nature of it, you might want to narrow further the list of crimes for which that kind of retroactive sample could be taken.

It's a good issue for discussion before this particular group. I can certainly sympathize with the argument that's put forward by various people here that, no matter whether they've been in jail for a long time or not, it might be very useful. I have to concede that. The civil and charter rights involved are an issue that I just can't offer an opinion about.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): I have several questions. I guess I'm not going to get them into the five minutes, so I'll stick to one issue that sort of startled me.

I'm coming along the lines of just strictly privacy issues here, not charter issues or anything like that. You said that if we store the profile and we use the profile, you have no hang-up with that.

Mr. Bruce Phillips: Just the fingerprinting.

Mr. Nick Discepola: Just the DNA profile.

Mr. Bruce Phillips: Okay.

Mr. Nick Discepola: Again, understanding that the only thing we are ever going to disclose is the name of the person, nothing more, to the authorities, from the standpoint of a privacy issue I have difficulty in understanding why you are not reassured by the legislation when it comes to destroying the samples, the penalties that are involved there.

If I go with our witness from yesterday, who suggested that maybe the whole testing and storing of the samples should be done by an independent agency—I'm grasping at straws here—tell me or this committee what you feel would have to be done to, I guess, assure you of the privacy issues on the storing of the samples, which, with the changing technology, could be very beneficial in future. I wouldn't want to get rid of them. If we've gone to all that trouble to get the legislation to get the sample in the first place, all of a sudden to get rid of them just because we have one profile which will be useless in a few months or years....

• 1635

Mr. Bruce Phillips: You haven't grasped a straw there, Mr. Discepola. You've put your hands around a pretty meaty issue here.

We are arguing for the retention only of the profile, as opposed to the sample, not because of any of the uses that are authorized in this bill but because of long and disappointing experience with the inevitable demand of other people to use the sample for unrelated purposes. Parliaments come, parliaments go. Good intentions come and good intentions go. Technology has shown us that, let somebody in the bureaucracy think of some new good use that's going to save them $10 or catch one crook by going through the files of 10,000 innocent people, and they will get their hands on that information.

Mr. Nick Discepola: So from a privacy issue or charter issue—

Mr. Bruce Phillips: That's the problem.

Mr. Nick Discepola: —you're coming at it from the misuse of the sample.

Mr. Bruce Phillips: I'm coming at it from function creep, to which Ms. Finestone referred a little while ago. I cannot believe, given the past experience and my own knowledge of what goes on in the government in data matching and a growing and inexhaustible appetite for data linkages.... Sooner or later somebody is going to want those samples to do some piece of research about criminal potential and that sort of thing; and they will get it, my friend. Believe it; because they are getting it now.

Mr. Nick Discepola: Then I would ask Mr. Oscapella this question. In your answer to Mr. Marceau's question about the electronic image that's stored you seem to be satisfied with just removing that link. But I still have the profile. All that's eliminated is the identification of that profile. I still have it.

Mr. Eugene Oscapella: Yes, but you have no way of linking that profile to me. If you have my DNA profile and it's rendered inaccessible, what they have done is taken away any connection between that profile and me. So you will have no way to connect that with me. If it's anything less than that, we would certainly not be satisfied with it. That is our understanding of making the profile inaccessible.

Mr. Nick Discepola: But if it still matches with the crime scene index and the convicted offender index you could get a hit. You wouldn't know who it was, but you would know it's a criminal who has been in your database before.

Mr. Eugene Oscapella: Yes, you might know that, but you're not going to know who it is, if you're speaking about a criminal database of thousands of people.

The other point on this question of keeping the samples—and I go back to what Mr. Phillips has said—is we should be looking at using the least intrusive measures first. If they prove unsatisfactory, then we should be considering more intrusive measures. If we use the more intrusive measures first, the keeping of the samples, we will not be in a position to assess whether the less intrusive measures might have been equally satisfactory in law enforcement effectiveness. That was one of our concerns.

Mr. Nick Discepola: Storing those samples with an independent agency, with proper audits, doesn't satisfy you.

Mr. Eugene Oscapella: One of the fundamental problems we have is we do not have an explicit constitutional right to privacy in the charter. If we had those sorts of overriding constitutional protections, I personally, and I'm not speaking for Mr. Phillips, would be more comfortable with this scenario. But we don't. We have tended to erode rights rather than to bolster them. That may be one way—

Mr. Nick Discepola: The fact of the matter remains that if I had the DNA profile I could rebuild the DNA sample.

Mr. Eugene Oscapella: No. You cannot rebuild the entire DNA sample, because the DNA profile operates on what they call “junk DNA”. They haven't found a purpose for this yet, so you may not be able to get at the other aspects. You may not be able to rebuild the other parts of the DNA sample, which might give you a clue about the physical make-up of the person, their psychological make-up, any genetic links to behavioural traits; things like those.

The Chair: Mr. Forseth has one question.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Mr. Phillips, you did say one interesting thing. You said there were 20 situations in which Revenue Canada...inappropriate situations. Are those 20 individuals or are those 20 generic categories which could involve an open-ended list of people?

Mr. Bruce Phillips: I'm talking about informational exchanges between Revenue Canada and other entities. They have a number with provincial governments. They have some with other departments of government.

• 1640

They have one to which I've taken an objection, and at this very moment I'm in the process of endeavouring to get it before a court, because I think it is a clear violation of privacy rights. Data from Revenue Canada—namely, returning travellers customs form, of which millions are filed every year—is being used to check against unemployment insurance claims to see whether any of the people who left the country were getting unemployment insurance at the same time.

Lots of people would argue that it's a reasonable use of the information. In my opinion it is not. It is not because the people who fill in customs forms, as they fill in many other documents demanded by the Government of Canada, do so for a specific, limited purpose. When you come back into the country, you give them your customs information so that they can collect their customs due. You don't give it to them to enforce the unemployment insurance regulations.

As a consequence of this, we now have the Government of Canada going through the files of millions—and I mean millions—of Canadians who are perfectly innocent of any wrongdoing, in a fishing expedition to see whether they can find in there a few people who have been beating the unemployment insurance for a few dollars. They are doing the match now and it's producing some people and they're recovering some unemployment insurance funds.

In terms of the rights of innocent people not to have their files thumbed through when they are suspected of absolutely nothing, I think this is a violation of their right under the charter, and I'm trying to get this before the courts.

That is a Revenue Canada and Human Resources match. That's what I'm talking about when I talk about function creep. It's the unrelated use of information given on a trust basis by the citizens of Canada for specific, limited purposes.

When the government decides on its one bat, for its own purposes of convenience, saving money, more efficiency and so on, to abrogate that trust, we have reached a situation where if this goes on much longer the ordinary citizens are going to stop giving information. They are going to say “No, I don't trust you people any more”. When we get to that situation, the Government of Canada will have a very serious problem, and so will the citizens. I think we've got to avoid that. I think the government has to keep its word with the people of Canada when they give information.

Revenue Canada will be the first to tell you that they are under increasing pressure from other departments and other governments to give out more information. Revenue Canada don't like it, particularly, because they are very conscious of the relationship they have with taxpayers and of the need to retain the confidence of the Canadian taxpayers that their information is going to be properly safeguarded.

When you take that problem and put it across the whole of the information-gathering activities of the Government of Canada, you've got a serious problem.

The Chair: Mr. Marceau, a brief question.

[Translation]

Mr. Richard Marceau: I think that a bank of this type is necessary, but that the information it contains could be used to do certain dangerous things.

I come back to what I was discussing with Mr. Oscapella about clause 9, that is making the information inaccessible, rather than destroying it in cases where there is a discharge or a pardon.

This am not concerned about particular individuals??, because I think the link between Mr. X and his DNA is removed. However, as an ordinary citizen, I am wondering whether someone, who decides to use these profiles that are floating around here and there, might not be able to identify a certain group with a greater potential for committing crime. This would be harmful to the group or would mean that certain assumptions were made regarding the whole group. That would lead us down a very dangerous path. I am not concerned about specific individuals, but rather about society as a whole. If we say that a particular group is more likely to commit crime, this becomes known, and negative assumptions are made about people who belong to the group. People think that these individuals could be criminals. That is dangerous.

Rather than simply making the information inaccessible, shouldn't we destroy it, because it could be used in extremely dangerous ways?

[English]

Mr. Eugene Oscapella: In that situation, because the actual DNA profile will not give you other than identifying information, it will not tell you—and I hope I'm correct in this, and I believe I am—the profile that you have will not give you information that will allow you to discern whether a person has a particular genetic trait, a behavioural trait or something, which might be common to criminals, a particular anti-social trait.

• 1645

In that sense, I'm not concerned about these free-floating, de-linked samples. If it were possible to use these de-linked samples to do a study on the genetic traits associated with criminality or whatever, then that would be problematic, but it's my understanding that the areas of DNA they are looking at right now do not have a known function.

Now, ten years from now we may find out that there is a function for those areas of what they call junk DNA. In that case the analysis of that may give some indication of some of the psychological or physiological traits of these people. If that's the case, then obviously we wouldn't have to revisit the issue, and you would be very correct in your concerns at that point.

The Chair: Mrs. Finestone.

Mrs. Sheila Finestone: Two issues. In discussion with one of my colleagues you talked about the exchange of information internationally. Very few other countries have the kind of legislation we have now and we are anticipating putting into place. I feel it would be the right thing to do to include in this legislation that unless we have similar laws, it should not be exchanged. I think that's of vital importance.

Secondly, in that light, could this not be seen as the forerunner of that step to a Canadian charter of privacy rights which I think is fundamentally needed? Certainly you were telling us about the unemployment insurance issue, which is one that has irritated a number of us for quite some time. It would fall under this. It would also include the criminal laws. Do think you need to be as far as a charter before you can put in the prevention of sharing this information with another country unless they have similar laws?

Mr. Bruce Phillips: No, I don't see why you have to have that in a charter. That can be a simple condition of contract for any exchange of information.

Yes, I think it would be a highly desirable step if we were to demand that any information we give about our citizens to foreign governments should be entitled to at least the same degree of respect and protection as we give it in our own country. That is not by any means a principle that is new. It is now the policy of the Treasury Board.... They don't have any laws governing this at the moment, but it is now their recommendation to government departments, for example for the privatization of government operations—

Mrs. Sheila Finestone: And Revenue Canada.

Mr. Bruce Phillips: Yes. This would become important because Revenue Canada is going to privatize some of its operations. The government is recommending that in any such future privatization exercise any personal information that is now in the custody and responsibility of the Government of Canada and that is transferred to the private sector will be given the same consideration as it now enjoys under the Privacy Act.

It has taken a long time to for us to bring this about. It was generated originally by the NAV CAN exercise, when basically the authors of NAV CAN, on both sides, told us to get lost. We did a little audit of the information concerned, and there were literally scores of thousands of documents in the possession of the government which they were going to give to NAV CAN and for which they had no conceivable use. Informed by that experience, I think the government now sees the wisdom of making sure it extends privacy protection.

I see no reason why the same considerations cannot apply to international information exchange agreements. At least they should be put on the table and the maximum amount of respect for Canadian citizens' rights that can built in ought to be built in. I think we have to concede that when you're dealing with other governments there are a host of other considerations, but that ought to be one that's up there near the top of the list. I agree with you absolutely.

The Chair: Colleagues, I know Mr. Phillips has piqued your interest in some of the issues, but there are always estimates.

We all like visiting, so we're glad to have had you. Thank you very much for assisting us on this bill.

• 1650

Mr. Bruce Phillips: Thank you, Madam Chair.

May I just close by thanking you all for your usual courtesy and consideration and for your extremely interesting questions. Any time a member of Parliament wants to talk over one of these issues individually, my office is only too happy to sit down. To tell you the truth, we wish it happened more often.

The Chair: We'll keep that in mind. Thank you very much.

We're going to rise for a minute while Mr. Walsh takes his place at the table.

• 1651

• 1656

The Chair: Order.

We have Mr. John Walsh, who is a crown counsel with the Attorney General's department of the New Brunswick Department of Justice.

Mr. Walsh, I see that you're going to give some comments concerning our review of the DNA warrant scheme. We're anxious to hear that, because most people are really focused on the new bill and excited about that. We really would like to know how the various attorney general departments feel the DNA warrant scheme is working.

We look forward to hearing from you, and then we'll have some questions.

Mr. John Walsh (Crown Counsel, Department of the Attorney General of New Brunswick): Madam Chairperson, ladies and gentlemen, first I would like to thank you for the kind invitation to be here and to speak with you with respect to the topic of the review of the operation of the DNA warrant provisions.

As well, with your permission, I have prepared some text associated with Bill C-3, the study of the DNA data-banking legislation.

I will turn first to the DNA warrant provisions. It was suggested to me that perhaps you should first know where I am coming from, so to speak, so you'll understand my position.

I was called to the Bar of New Brunswick in 1977. For the first ten years I was a defence counsel. Having seen the light, I then became a crown counsel for—

The Chair: There are lots of lights.

Mr. John Walsh: I became a crown counsel and have been so for a bit more than the last ten years. I am employed by the New Brunswick Department of the Attorney General.

In 1993 I was seconded to the federal Department of Justice criminal law branch for a year. I had the opportunity to work exclusively in the area of forensic DNA evidence.

I have been involved in the trial prosecution and appeals of notorious cases that involved DNA evidence, such as Allan Legere and William Stillman, and while I was in Ottawa assisted in the federal intervention in Josh Borden, a case from Nova Scotia.

With that experience, I can tell you that the DNA warrant legislation is of tremendous benefit to the investigation and prosecution of serious criminal offences.

In the five or six years preceding this legislation, police officers and prosecutors possessed this great tool, DNA forensic typing, with the power to identify violent criminals and corroborate victims' complaints. Yet, because of its comparative nature, requiring in most cases a biological sample from the suspect, and the uncertainty of the common law and the absence of precise legislation for the taking of a bodily sample from the suspect, many cases were hamstrung. Some were even destroyed. This changed dramatically with the passage of Bill C-104, for the better.

It is my own experience, and those of my colleagues that I have consulted across the country, that the DNA warrant provisions can be and have been practically utilized, both in obtaining and in execution. Most provisions are easily understood and applied.

As well, in my respectful opinion, the legislation strikes the appropriate balance between the need to protect society on the one hand and the need to ensure that the security of the suspected person is intruded upon in a minimal fashion. Indeed, in the past year two trial judges, one in Alberta and one in Ontario, using somewhat differing approaches, have upheld the constitutionality of these provisions. In the Ontario case the trial judge did rule, however, that the plucking of hair was not constitutionally justified. I understand that case is now in appeal.

• 1700

Also, the Supreme Court took the unusual, albeit not binding, step of making favourable general comments about the DNA warrant scheme in a case in which the legislation was not directly before it.

Nevertheless, experience with these provisions over the last couple of years has also demonstrated a need to make some changes. I would like to touch on two areas.

Section 487.04 defines the criminal offences for which a DNA warrant can now be obtained. We would suggest the following Criminal Code offences be added. The first is infanticide, under section 233, the killing of a newborn by its mother, and the concealing of the body of a child after its mother has delivered, to conceal the fact of birth, under section 243.

To illustrate the need, at the time of the passage of the DNA warrant legislation an investigation was going on where a newborn child was found floating in a bay. It could not be determined if the child died before, during, or after birth. The police did suspect a particular young person as the mother and had sufficient grounds to comply with the DNA warrant scheme except that the suspected offence, section 243, concealment, was not a designated offence. DNA evidence, of course, would be very relevant, since it can determine paternity.

Other offences we suggest should be added include criminal harassment—the stalking provision, which is set out in section 264 of the Criminal Code—uttering threats to cause death or grievous bodily harm, in section 264.1; and extortion, set out in section 346. These are serious offences of violence, and they can lend themselves to the utilization of DNA typing.

Particularly since the advent of PCR, polymerase chain reaction, even smaller and more degraded samples can be typed. In fact, the technology is employed, whether RFLP or PCR based, to analyse DNA amounts measured in the nanograms. Consequently it is now almost a matter of routine for the forensic scientist to be able to obtain results from licked postage stamps, envelope flaps, chewing gum, cigarette butts, phone receivers, etc. You are limited only by your imagination in the ways DNA evidence could assist in the investigation of crimes such as those I have just mentioned. With this knowledge I expect you can also see the utility of DNA typing in the investigation and prosecution of non-Criminal Code but nonetheless serious offences such as drug trafficking which are deserving of consideration for inclusion in the list of designated offences. These types of crimes, after all, are the root cause of much violence, particularly when you are dealing with hard drugs.

We would also recommend that the criminal driving offences resulting in bodily harm or death be added. These would include impaired driving causing death or bodily injury, contrary to subsections 255(2) and 255(3), and dangerous driving causing death or bodily injury, under subsections 249(3) and 249(4).

The principal benefit of DNA typing in these kinds of cases is in determining who was driving the vehicle, for example where blood is found in a location inside the vehicle consistent with the position of the driver in circumstances where the vehicle was involved in an accident with multiple occupants or the suspected driver is outside the vehicle at the time of the initial response. Criminal negligence causing death or injury, which can be applied to the operation of a motor vehicle, are currently designated offences, as is leaving the scene of an accident. There is no logical reason why the so-called lesser offences of impaired causing and dangerous driving causing should not also be included. They are in themselves serious offences and are recognized as such by the general public and by the courts.

• 1705

Another offence we suggest be included is that form of mischief defined as damage to property the value of which exceeds $5,000, section 430(3), otherwise known as vandalism. Vandalism to private and public property is a serious problem.

We accept that the present list of designated offences is primarily exclusively aimed at serious crimes of violence, apprehended violence or where there is a considerable risk of violent confrontation. But we suggest that violence should not be the only measure of seriousness for an offence to be included under the DNA warrant scheme.

What justification can we give to turning a blind eye to serious cases of destruction or damage to property measured against the investigative procedures sought to be employed?

Obviously we value more the protection against personal violence, but is the importance of DNA typing or the need to protect against unwanted intrusions on suspects' privacy and bodily integrity diminished because we also wish to protect society against serious property crimes? The reality is that certain acts of vandalism, and like crimes, such as arson, can have a devastating impact on the private citizen or the public as a whole.

I can give you two short examples—one is hypothetical, the other is an actual incident—to help make my point.

Hypothetical: Assume a painting by one of the Group of Seven or a Krieghoff was destroyed in a museum during its open hours. Assume a suspect has been identified and a bodily substance was left by the perpetrator, perhaps blood. Under the present legislation a DNA warrant would not be available.

A more mundane but actual case example is that of the car dealership that has had its vehicles extensively destroyed as they sat in its lot. The lot was not fenced or otherwise enclosed; therefore, break and enter as a predicate offence is not available. There was blood found in one of the vehicles. A suspect has been identified. There are sufficient grounds to seek a DNA warrant, but without DNA evidence that may match him there is no reasonable likelihood of conviction—at least not without compromising an informant.

I pose the rhetorical question: should a DNA warrant be available for those cases?

We are of course asking you to rethink the basic premise for targeting crimes for inclusion in section 487.04.

I would now move to another provision of the warrant scheme in which experience has revealed a deficiency.

Section 487.05 details the initial and essential requirements that must be established on reasonable grounds in order for a warrant to issue. They are—and I'll paraphrase: (a) that a designated offence has been committed; (b) that the police have found the bodily sample during the investigation for which DNA typing can be conducted; (c) that the person from whom the warrant is sought was a party to the designated offence; and (d) that forensic DNA analysis of a sample from the suspect compared to the sample obtained during the investigation will provide evidence as to the identity of that unknown sample.

Unusually, and unfortunately, you will notice that paragraph (b) as it is drafted in the Criminal Code purports to define where the unknown biological sample—that is, the evidence sample—came from that is obtained by the police during the investigation.

Paragraph 487.05(b) states as follows:

that a bodily substance has been found

(i) at the place where the offence was committed,

(ii) on or within the body of the victim of the offence,

(iii) on anything worn or carried by the victim at the time when the offence was committed, or

(iv) on or within the body of any person or thing or at any place associated with the commission of the offence.

It is apparent that Parliament, by defining the circumstances so broadly, did not intend to limit the origin of the evidentiary sample to which the suspect sample was to be compared. However, in attempting to define what appears to be all inclusive circumstances, it has created a problem of interpretation, which has manifested itself in two cases where warrants have been refused.

• 1710

In the first case the complainant alleged that a particular person sexually assaulted her and it resulted in her becoming pregnant. The suspect denied any sexual contact. The police had grounds to obtain a warrant from the suspect and of course wanted to corroborate the complaint by comparing the DNA profile with that of the fetus. The mother was consenting. The warrant was refused on the basis that the fetus did not fall within the description of a bodily substance “on or within the body of the victim” or “on or within the body of any person or thing associated with the commission of the offence”.

In another similar case in a different province a warrant was issued. It's a matter of judicial interpretation.

Likewise, in another case a warrant was refused in circumstances similar except that the complainant alleged that the sexual assault occurred 25 years previously, that she became pregnant, and that she had given birth. The suspect denied any sexual contact. The police sought a warrant against the suspect in order to compare his DNA profile with that of the child, who was now an adult and who was consenting to the comparison. The issuing judge refused, on the basis that the offspring did not fall within any of the definitions set out in paragraph 487.05(b).

It would appear reasonable to allow warrants to issue for these purposes and that the paragraph be amended, but not by adding yet another category. It would be simpler not to attempt to define where the evidentiary sample comes from. We would suggest that paragraph (b) be amended to read simply:

that a bodily substance has been found or obtained

—and that paragraph (b) be consequently amended to read:

that forensic DNA analysis of a bodily substance from the person and compared to the bodily substance referred to in subsection (b) will provide information concerning the offence.

Such a change, we suggest, will simplify the warrant scheme, avoid conflicting interpretations and unnecessary litigation, remove an unnecessary impediment to the utilization of the warrant scheme, and add consistency in legislative approaches, such as with the bodily impression warrant scheme in section 487.091 of the Criminal Code.

Those are the two areas I wish to touch on in relation to the warrant scheme. I would like now to move to the study you're conducting of Bill C-3.

Whereas the DNA warrant scheme addresses crimes with suspects, this bill addresses the utilization of forensic DNA typing for crimes without suspects. We strongly support the efforts to create a national forensic DNA evidence bank. We recognize that the drafting of Bill C-3 was difficult. It required the balancing of various and sometimes competing interests, as reflected in the summary of consultations compiled following the release of the consultation paper.

On the whole, we believe the post-conviction scheme envisioned by Bill C-3 is a judicious and pragmatic response. It meets the needs of society by effectively enhancing law enforcement but protects the constitutional rights of the individual. I in fact agree with what the privacy commissioner said in relation to pre-conviction sampling. In my humble opinion there is no way you are ever going to be able to justify that from a constitutional point of view.

There are, however, several points we wish to raise. First, although we understand the rationale behind a two-tiered approach to the designated offences and therefore offenders for inclusion in the convicted offenders index, we have concerns about the adoption of a discretionary approach to determining whether those convicted of a primary designated offence are included in that index. As you know, clause 17 of the proposed DNA Identification Act—and it has a number of amendments there—would prima facie require that a sample be taken from a person convicted of a primary designated offence, the most serious. But there is a caveat. The proposed paragraph says:

The court is not required to make an order...if it is satisfied that the person or young person has established that, were the order made, the impact on the person's or young person's privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.

There is also provided a right of appeal independent of the right to appeal a conviction.

• 1715

If the intent of this bill is that individuals convicted of primary designated offences should have a sample taken from them for entry into the data bank, it is dangerous to attempt to statutorily define a residual discretion in the judge to refuse to order the sample to be taken. As I understand it, and as the case law demonstrates, courts have an inherent jurisdiction to constitutionally exempt individuals from any type of mandatory scheme in the extreme or rare case, but to legislatively define such a discretion in a scheme that is intended to be mandatory is to invite litigation and to create the circumstances for differing judicial interpretations and potential unequal application of the legislation. Such a provision, which of necessity contains nebulous criteria, will only add an additional litigious layer, consume scarce resources, and further burden the justice system.

In other words, our position is that the legislation should clearly exhibit Parliament's intent, a mandatory provision, at least for some of the worst crimes known to our law, and leave it to the courts to entertain an application for a constitutional exemption as an exception, not invite such applications on the basis of legislative drafting and interpretation.

The second point we wish to raise relates to the purported retrospective application of Bill C-3. As you know, and as it was discussed when the privacy commissioner was speaking to you, there is provision there for that kind of operation. In fact, one provision, the true provision, says that bodily samples can be taken by police officers on application by a prosecutor to a judge from a person declared to be a dangerous offender under the Criminal Code prior to the passage of the legislation, or from a person who has been convicted of more than one sexual offence and is serving a sentence of two years or more in custody, or from a person who is on parole for one of those offences at the time the DNA bank becomes effective. We believe it does not go far enough. The immediate effectiveness of the bank can be enhanced by its application to those sentence serving for murder and manslaughter, or at the very least multiple offenders of those offences.

I read last week that it was noted in this committee that Bill C-3 would not capture the Clifford Olsons. It was mentioned earlier this afternoon. We agree that this is a deficiency. From my own province, we have the infamous Allan Legere. He too would escape this legislation. Yet people of this ilk should be targeted.

There is a lot of unsolved violent crime in the country. This is a pressing concern. Common sense tells us that there is a probability that at least some of these kinds of offenders are responsible for past, unsolved, particularly violent, crime. As well, for those who are eventually released or are now on the streets under parole supervision, the data bank provides an important tool for solving and linking future violent crime that these kinds of offenders may be responsible for. Why should we wait to build up profiles of those who commit and have committed homicide?

Of course, the argument that can be made against removing statutorily defined discretion, as we have argued for, or for arguing against expanding the scope of the data bank by widening the net of offences for purported retrospective inclusions, as we have argued for, is the issue of constitutionality. Would such changes survive constitutional review by the Supreme Court? At least on the issues we have raised, legal opinions differ. We believe the changes we are suggesting to Bill C-3 are constitutionally sound or we would not be offering them to you. Others, of course, will disagree.

• 1720

I listened earlier to the discussions you had with the privacy commissioner in this area. With your permission, I'm just going to give you a glimpse into the kind of debate that exists. I'll use as an example the recommendation we made that the reach of Bill C-3 be extended to include those convicted of homicides serving sentences at the time the legislation is passed, or at least multiple offenders of those kinds.

There are those who argue that the bill cannot have any retroactive or retrospective application, let alone expand beyond what the bill already targets: dangerous offenders and multiple sexual offenders. They cite canons of statutory construction or characterize the taking of a bodily sample from those convicted in the past as punishment, thereby citing a violation of section 11(i) of the charter.

On the other hand, we argue that Bill C-3 is not a sentencing regime. It does not impose punishment in requiring the taking of a sample after conviction. More significantly, we argue that the bill does not have retroactive or retrospective effect as those terms are understood in the law. We use the term as a matter of common speech to describe something in the past. But as a matter of law, it is my understanding that those terms are very precisely defined.

What that part of Bill C-3 does is assign a status to an individual as a result of past conduct. I can best explain what I mean by reference to a Supreme Court decision in 1968, obviously pre-charter. In any event, I think it makes a point. It dealt with the then new habitual criminal legislation and whether it was permissible to rely on convictions rendered prior to the passage of the legislation to support a declaration that a particular person was an habitual criminal and what flowed from that. The case is Patton, and as I said, it was decided in 1968.

I'll just very briefly quote from the Supreme Court of Canada:

The purpose of the habitual criminal legislation is not to create a new offence nor to increase the penalties for offences with respect to which sentences have already been imposed. The purpose is crime prevention. The habitual criminal is not imprisoned for doing something, but rather for being something. The finding is simply a declaration of his status as an habitual criminal, which is a matter determined by reference to his past record.

The facts are not identical, but I think you draw from what I've quoted the point we're trying to make. The principle at play is quoted in another case as follows:

An enactment does not operate retrospectively because a part of the requisites for its operation is drawn from a time antecedent to its coming into force nor because it takes into account past events.

As I said, this is just a glimpse into the debate on but one issue, and they're difficult issues. But if the arguments over the constitutional implications of any proposed amendment are the only cause for reticence for making amendments that the Canadian people otherwise want, then we have a final recommendation, and I'm afraid it may raise some eyebrows.

We would suggest a direct reference by the Governor in Council to the Supreme Court of Canada, as provided for in section 53 of the Supreme Court Act. Such a reference of Bill C-3 in its entirety, after Parliament has made any amendments to reflect the will of the Canadian people, is a unique opportunity with many potential benefits.

Unlike most criminal legislation, Bill C-3 is not fact-dependent, in the a sense that a live case is needed as a basis for argument. It lends itself to the reference mechanism, and extrinsic evidence can be presented to assist the court in its deliberations.

Issues such as we have raised, provided they are incorporated in the amended bill, could be decided prior to implementation and thereby guide implementation.

A reference would avoid a multitude of challenges arising from various jurisdictions should the legislation pass into law in the normal fashion, possibly creating uncertainty during the period before its inevitable review by the Supreme Court, a review that may take years or that may reach the court in a piecemeal fashion, further extending the period of uncertainty. In the meantime, considerable resources will have to be expended to meet the challenges.

• 1725

A reference would also allay concerns that a particular decision of the Supreme Court rendered sometime after implementation could have a serious impact on the manner in which the scheme has been implemented and administered during that time. This has the potential for serious economic and technological ramifications, among others, should changes need to be made after implementation as a result of some ruling of the Supreme Court years later.

Although we are anxious for the legislation—and believe me, I am anxious for the legislation—any time taken now for a reference would be offset by the certainty provided by the reference.

Finally, a direct reference for legislation such as Parliament is wrestling with here would be, I would respectfully suggest, but a reflection of what our country has now been described to be with the advent of the charter—a constitutional democracy.

Those are my comments, Madame Chairperson, ladies and gentlemen. Thank you for your attention.

The Chair: Thank you, Mr. Walsh. When you say we, are you talking about your department?

Mr. John Walsh: Yes. I'm talking about the Department of the Attorney General.

The Chair: Have you consulted with other attorney general departments?

Mr. John Walsh: Just so that we're very clear, I'm here from the New Brunswick Attorney General's department. I have consulted my colleagues, the foot soldiers like myself in the field, in terms of the operation of the DNA warrant provision and various issues. I certainly can't speak for some department in some other province.

The Chair: No, I'm not asking you to. I just wondered if you had been in touch with them.

Mr. John Walsh: Yes, I have. I have been in discussions with many of my colleagues across the country with respect to all these different kinds of issues and problems.

The Chair: Would it be fair to say with respect to Bill C-104 that you're not way out on a limb there somewhere? Do you know what I mean?

Mr. John Walsh: That I'm out on a limb?

The Chair: I'm not asking you to speak for others, but are you satisfied that your view of Bill C-104 that you presented today is supported in other parts of the country?

Mr. John Walsh: By the prosecutors.

The Chair: Yes. That's what I'm talking about.

Mr. John Walsh: I think it's fair to say that. I can't imagine too many prosecutors who would take issue with the extension of the offences that we've identified. You could take an extreme situation and come here and simply say all indictable offences. I haven't done that. There are those who will push for that, mind you. Initially I was one, but I've narrowed my scope.

I've tried to identify the offences that not only I think are right, but I'm mentioning offences that other prosecutors have mentioned to me. I believe there's a crown counsel coming from the province of Ontario next week, and I expect she will raise many of the same things that I have raised—not all, mind you, and maybe some additional ones.

The Chair: We have the Ontario Crown Attorneys' Association invited as well, which will be interesting. Thank you. I just wanted to clarify that to assist my colleagues.

Mr. John Walsh: Madame Chair, if I may, I know there are other issues with the bill. Some of them are really technical. I just homed in on two that I thought were....

The Chair: Have you communicated directly with the justice department on this?

Mr. John Walsh: Do you mean the federal justice department?

The Chair: Yes.

Mr. John Walsh: Yes—not a formal communication, but discussions with other lawyers within the department over different issues.

The Chair: Thanks.

Mr. Ramsay, you have about five minutes.

Mr. Jack Ramsay: Thank you, Madam Chair.

You referred to section 487.055 and said that it should be expanded. That's what we call the retroactive—

Mr. John Walsh: Okay, I see what you mean. I had referred to 487.05 in the warrant scheme.

Mr. Jack Ramsay: I'm referring to our Bill C-3. You would prefer to see that expanded?

Mr. John Walsh: Yes.

Mr. Jack Ramsay: You mentioned expanded to murder. Is that the extent of the expansion?

Mr. John Walsh: Yes, as far as I'm prepared to suggest—homicide. That is quite an expansion. That is a major category of offences.

• 1730

Mr. Jack Ramsay: Why would you not also include rape in the first instance? Why would you not do that?

Mr. John Walsh: From a practical point of view, there is no real reason why you wouldn't. From a purely practical point of view, of course you could identify all of the designated offences that are presently listed. You could extend them all. But the problem is that whatever you draft when you try to go after offenders who have committed crimes in the past, you have to demonstrate at some point to a court that you have exercised some restraint, some balance.

It would seem to me that the present way it's drafted they refer to multiple sexual offenders and they refer to dangerous offenders. If we expand it to homicides, I think that is a justifiable expansion.

Mr. Jack Ramsay: Would you expect a charter challenge if it went beyond that?

Mr. John Walsh: I expect a charter challenge as it's presently drafted.

The Chair: I would.

Mr. Jack Ramsay: Okay.

Tell the committee what the law is with regard to the right of the authorities, the police, to fingerprint someone in Clifford Olson's or Legere's position had the police not obtained the fingerprints prior to conviction. Can you go in after conviction and fingerprint someone who has been convicted of an indictable offence?

Mr. John Walsh: I believe the Identification of Criminals Act covers before and after.

Mr. Jack Ramsay: So if that precedent has been set, why would you fear a charter challenge in this area?

Mr. John Walsh: Because I was involved in arguing Stillman, and I can tell you that the Supreme Court's view of latent fingerprinting is that they draw a big distinction between that and the removal of a bodily sample from the body.

Mr. Jack Ramsay: And what's the distinction based upon?

Mr. John Walsh: The expectation of privacy, the degree of intrusion—the protection of the bodily integrity of the individual. You see, the justification for convicted offender index—prospective, retrospective, whatever term you want to use—the legal justification is that the level of expectation of privacy of the individual from whom you're taking the sample is lowest after conviction.

Mr. Jack Ramsay: Does the privacy point turn on the taking of the sample itself, or the enormous information value contained within the sample? What does the privacy principle point turn on? What did the Supreme Court say?

Mr. John Walsh: It turns on not only the informational component but it also turns on.... They refer to the sphere of privacy that surrounds individuals. So it will encompass the informational component and it will encompass the physical component. It's a combination of factors. It's the autonomy of the individual.

I think the privacy commissioner mentioned a reference to Mr. Justice La Forest, who had written extensively in this area when he was on the Supreme Court. They define the individual as autonomous and that there is this sphere of privacy that surrounds this particular individual. The ability to get beyond that protection, that barrier that's built by the law around that individual, depends on your justification. It depends on—

Mr. Jack Ramsay: Okay, I'm confused. In terms of time, the taking of fingerprints is far more intrusive than taking a blood sample out of the end of the finger or a hair sample or a swab. If technology reduces this whole component of privacy—in other words, we understand New Zealand now has the technology developed and they're using it where they can use the similar process they used for fingerprinting to get the DNA sample—what would that do? Would that satisfy this whole question of privacy?

• 1735

Mr. John Walsh: Mr. Ramsay, I can tell you, as one who argued Stillman before the Supreme Court, they view latent fingerprinting much differently than they do the taking of a bodily sample from the person. In fact they draw a great distinction between that and the taking of a dental impression.

One of the issues we had in Stillman was the dental impression. I tried to draw an analogy between the taking of fingerprints and the taking of dental impressions. The common law recognizes that in certain circumstances you could do anal searches to find evidence such as drugs. We tried to draw all those analogies. If you look at Mr. Justice Cory's judgment in Stillman, he makes very clear on behalf of the majority of the court the basis for drawing that distinction as self-incriminatory evidence in the extreme.

Mr. Jack Ramsay: Could I have one more question? Thanks, Madam Chair, I appreciate that.

The Chair: But you'll pay for it next time.

Mr. Jack Ramsay: I'll pay for it, I'm sure.

What does the law say about obtaining a DNA sample from a suspect without their consent—in other words, picking up a glass they've used, a kleenex they've blown their nose into?

Mr. John Walsh: In Stillman, as in Legere, in both those cases.... Legere was kicked in the face during his arrest. He was having breakfast and blew his nose into a kleenex and threw the kleenex in the garbage can. The police picked the kleenex out of the garbage can and it was one of the best samples we had to compare to the semen at the various crime scenes.

In Stillman, Stillman was being questioned and during the course of the questioning he cried. He went to the washroom with the police officer, blew his nose into a paper towel and wiped his mouth and threw it in the garbage can. The police officer picked the paper towel out of the garbage can. It was a better sample than the actual hair that was taken from him, and compared to the semen found in the young woman.

Mrs. Sheila Finestone:

[Inaudible—Editor].

Mr. John Walsh: It was, but I wanted to give you those two examples because I want you to understand what we understood the law to be, and that is that a person had no reasonable expectation of privacy over something he discarded, and therefore you didn't require judicial authorization.

In Stillman, Mr. Justice Cory has said it's not entirely correct to assume that because someone has discarded something while in police custody, they are abandoning it.

Mr. Jack Ramsay: What if they do it outside of police custody?

Mr. John Walsh: Fair game—pick it up.

Mr. Jack Ramsay: But what about the Supreme Court analysis of it?

Mr. John Walsh: I think that's the basic principle, that someone who has discarded something has no reasonable expectation of privacy over it. Depending on where they discard it, mind you—they may have a reasonable expectation of privacy over the place where they discard it.

Mr. Jack Ramsay: Is there a judgment on that point?

Mr. John Walsh: There are many judgments on that point. There's a case in Alberta called Love. There's Legere, Stillman. There's a case you mentioned, the glasses. There's a case—I can't remember the exact name, it may be Good—where the police set up the consumer testing booth in the mall, I think it's in British Columbia, with chewing gum and juice selections.

The Chair: Good?

Mr. John Walsh: Jason Good, I think.

The Chair: Yes.

Mr. John Walsh: They set up this taste test. They watched his routine and followed him. They knew his routine: he always went to the mall. They enticed him to drink some juice and chew some gum and discard the.... And from that they were able to obtain enough DNA sample to compare to the crime scene. The power of identification through the statistics was good, but it wasn't great.

The DNA warrant legislation, Bill C-104, passed just before that trial started. They got the warrant. They went and used the warrant, obtained a better sample from the accused, matched it again. They got better statistics, which was tantamount to positive identification.

But there are distinctions in the law on throwing something away. It's not simply—

Mr. Jack Ramsay: It's not clear.

Mr. John Walsh: It's not clear.

Mr. Jack Ramsay: Thank you.

[Translation]

The Chair: Mr. Marceau.

• 1740

Mr. Richard Marceau: First of all, thank you for coming. You started by saying that you used to be a defence lawyer before becoming a crown attorney, and that you had seen the light. I think the light was very bright.

My main question is about the amendment you suggest to clause 17 of the bill. It would take away from the judge the discretionary authority granted by the bill to refuse to allow the taking of a bodily substance from a person convicted of a designated primary offence. I did not understand exactly why you wanted to do such a thing so systematically.

[English]

Mr. John Walsh: My comments dealt directly with the primary designated offence where there is a residual discretion defined for the judge. The problem is it's going to create a huge amount of litigation. Initially you're going to have individuals testing the system, testing the scheme as to how mandatory is the scheme. If you look at the criteria set out there, it's very nebulous. It's very difficult to get a handle on how that discretion is to be exercised.

The fear is that Parliament waters down what it intends to say. If it intends to say we want samples taken from people convicted of primary designated offences, say it. But if you then try to say the judge has the discretion and define the circumstances, you are going to invite litigation.

[Translation]

Mr. Richard Marceau: But at the same time, as you were saying yourself, the bill tries to find a balance between two issues: granting protection for society and privacy considerations. Don't you think there is a better balance if judges have this discretionary power rather than an automatic power? If the act provides that, as soon as a person is convicted of a primary designated offence he or she would be required to provide a sample, are we not opening the door to a challenge under the Canadian Charter?

[English]

Mr. John Walsh: Anything you do is going to leave it open to challenge, but you're not removing discretion altogether. The judges have inherent jurisdiction to alleviate what they consider to be a true injustice in the rare exceptional case, using the concept of constitutional exemption.

Parliament has the right to say they want these kinds of convicted offenders to be sampled. Once you make a decision as to what offences, then that's from whom the samples should be taken. You're not saying that under no circumstances can a person get away or not have the sample taken; in certain circumstances they can. The judges have that inherent jurisdiction, but it's only exercised rarely and it's meant to be an exception.

If you define it, depending on the view of the judge and the nature of the criteria, you're going to create all kinds of different interpretations as to who gets into the data bank. The risk and the fear is that one judge may have a higher threshold than the other in terms of not forcing you to give a sample or the other judge says they would force the same kind of person to give a sample. So there's a risk of the unequal application of the data bank. And it will take some time, of course, to move it up into the Supreme Court if it's not direct referencing. So there's a long period there where you could have an unequal application, and the resources that would have to be expended to deal with these on a case-by-case basis are great.

[Translation]

Mr. Richard Marceau: You are here as a crown attorney, and, ultimately, you say that while some changes should be made, generally speaking, you find the bill in its present form relatively satisfactory. If I were to ask the same question of the John Walsh who was a defence lawyer 15 years ago, would the answer be the same?

[English]

Mr. John Walsh: Yes.

The Chair: Mr. Muise.

• 1745

Mr. Mark Muise: Mr. Walsh, at present the list of crimes designated as primary or secondary offences for DNA collection does not include section 163.1 of the Criminal Code, which deals with the possession of child pornography. Would you favour including section 163.1 as a designated offence under Bill C-3, and if so, would you classify it as a primary or secondary offence?

Mr. John Walsh: I was just looking in the back of the warrant legislation, where you have the complete list of designated offences.

I see no reason why it cannot be included. Those kinds of crimes are very serious. They are crimes of apprehended violence, violence apprehended. You're making an argument essentially to include that kind of a crime within the list of designated offences for which you can get a warrant. I see no reason why it cannot be included. The availability of DNA evidence would be rare on a case-by-case basis, but I see no reason why it cannot be included.

I'd have to give some thought as to whether it should be a primary or secondary offence for the purpose of the data bank. I would like to give some thought to that.

Your primary issue is should that be included as an offence for which a warrant can be obtained if there is a case where you could use DNA evidence?

Mr. Mark Muise: Yes.

Mr. John Walsh: I see a very good reason for including it in the data bank. I think it's obvious that if anyone's possessing child pornography, the fear and the risk is that it will lead to other kinds of offences. So I hate to speak off the top of my head—I do it enough—but off the top of my head, I think there is a justifiable reason, particularly if you consider that data banking is aimed at recidivism, the possibility of repeat offenders.

Mr. Mark Muise: Thank you.

During his testimony the Solicitor General was somewhat vague regarding the source of funding for operating and accessing a DNA data bank. He was unable to provide clear answers as to whether case work will be cost-shared between the federal and other levels of government or be paid by the provinces or the police under a fee-for-service arrangement. Would you be able to describe the present situation of the cost-recovery?

Mr. John Walsh: That is well beyond my sphere. I'm sorry, I just can't answer that question. I have no information, no knowledge. I wouldn't dare answer it.

The Chair: That doesn't stop any of us.

Mrs. Finestone.

Mrs. Sheila Finestone: I don't know if you were here earlier and you heard Commissioner Phillips, the privacy commissioner. If you heard him and you heard me, we were discussing function creep. I get a strong sense of function creep from the question of my honourable colleague across the way on child pornography.

I would ask the same question: Would you include those who produce hate crimes and hate literature and put it on the Internet, the same as happens with child pornography? It leads to violence. It leads to violent actions.

I think there comes a point when I have some concerns about how far we go. I certainly don't like the producers of hate literature. I certainly don't like child pornography. I don't like pornography of any kind, frankly. But I would just wonder if that would call for warrants from the court to prosecute. You don't think that having material witnesses is enough?

Mr. John Walsh: No—

Mrs. Sheila Finestone: Because you said you thought yes, and I was just looking at your list, and as someone who is totally new in this field and just a listener at this moment, it gives me some serious pause for concern when I see mischief and damage to property. You can hit a television set that's worth $5,000 or you can destroy someone's computer or CD, and you're suggesting that we should be taking fingerprints from these people and blood samples and DNA samples, which are very invasive. And we don't know what's going to happen to the material that's kept in a bank that can be used later on. It makes me a bit nervous, frankly.

• 1750

Mr. John Walsh: In terms of the argument that some of these offences could be relatively minor, that's quite true. But that is provided for in the DNA warrant scheme itself. When you apply to a judge for a warrant you simply don't go by rote. I have mentioned the prerequisite: you have to have reasonable grounds to believe certain things. But by virtue of law, the judge has the discretion not to issue a warrant. In fact I believe it specifically says that he has to be satisfied that it's in the best interests of the administration of justice.

For example, you have assault that's listed as a designated offence. You can have a very minor assault and you can have a very, very serious assault that doesn't go beyond into assault causing bodily harm. It is for the judge to take that measure at the time as to whether or not to grant the warrant. It's provided for there.

In terms of this notion of function creep, this is the first time I've heard of this term, but I understand how it's used. I have identified certain offences that I feel should be included in the DNA warrant provision. You can give good reason why any number of offences should be included in that particular scheme.

Mrs. Sheila Finestone: What you're saying to me is the discretion is there for the judge to use the best and reasonable judgment.

Mr. John Walsh: Yes. It's implied by law and it's set out in the provision.

Mrs. Sheila Finestone: Thank you.

You were discussing with Mr. Ramsay the Stillman case, and I believe you said you were involved with the Borden case.

Mr. John Walsh: We intervened. When I was with the federal government, the federal government intervened in the Borden case before the Supreme Court of Canada.

Mrs. Sheila Finestone: Is that the case that was brought to our attention the other day in which—

The Chair: Mr. McKay raised it.

Mrs. Sheila Finestone: —he was guilty on the one count but he was also guilty on the second but you couldn't charge him based on the second evaluation?

Mr. John Walsh: Essentially what happened there is that he was suspected—

Mrs. Sheila Finestone: I guess I'll finish my question. Would the warrant process, with the change that you're recommending, have helped?

Mr. John Walsh: In the Borden situation?

Mrs. Sheila Finestone: Yes. Hadn't he committed two crimes and you could only charge him for one because you went and got a warrant and it wasn't in the plural or something? I think that was Mr. McKay's question.

Mr. John Walsh: What happened in Borden is that this elderly woman was raped.

Mrs. Sheila Finestone: Right.

Mr. John Walsh: They didn't have a suspect. Or let me put it this way: they didn't have a suspect for whom they would have enough grounds to obtain a warrant, even if one was available. But the person they thought might be involved committed a second crime involving another woman for which DNA evidence wasn't really needed or wanted.

What the officers did in getting a consent for the second crime for him to give his blood.... From what the court found, what they were really doing was getting the blood to compare it to the first crime, which they believed he might have done but didn't have the grounds. They got that blood, and when they compared it to the first crime it didn't match.

Mrs. Sheila Finestone: It matched.

Mr. John Walsh: It matched, but the court said it was not an informed consent, in the sense that he was not told of the purposes for which the sample was being put. He gave it for one crime, not the second crime. Now the reverse, of course—

Mrs. Sheila Finestone: If he hadn't killed the second person you would never have found out that he killed the first person and the second person?

Mr. John Walsh: There wasn't anything really about the second crime that led them to believe that he committed the first crime. It's just that it was convenient that they had him under investigation and had a good case on him for the second crime. As a result, they asked him for the blood sample. He believed it was for the second crime when in fact they were going to use it for the first crime. Without an informed consent and no other basis, the court said you can't do that.

Mrs. Sheila Finestone: Under this new bill, would that happen again?

Mr. John Walsh: Bill C-3, the data bank bill?

Mrs. Sheila Finestone: Yes.

Mr. John Walsh: Under that bill, it depends if Mr. Borden had been convicted previously. If he had been convicted before he raped the elderly woman, one of the primary designated offences, his profile would be in the data bank.

Mrs. Sheila Finestone: Yes, but you didn't find him, so you didn't know who he was. You didn't have any information or any DNA.

• 1755

Mr. John Walsh: What I'm saying is if Mr. Borden had actually raped this elderly woman at one point, and three years before he had committed a sexual assault against some other woman in some other province and the police who were investigating the rape of the elderly woman didn't even know him, if the data bank was in existence it would be assumed that his profile would have gone into the data bank. They would have put the crime scene profile from the rape of the elderly woman in the data bank and they would have had a match.

The result of the match in the data bank is not evidence that's brought to court; it's the basis for reasonable and probable grounds to go get a warrant under Bill C-104. They work together. Bill C-104 and Bill C-3 would work together. You would use Bill C-3 to gain your grounds to apply for a warrant under Bill C-104.

Mrs. Sheila Finestone: Thank you.

Mr. Jack Ramsay: The match to the data bank is not enough?

Mrs. Sheila Finestone: I figured you'd pick it up and ask the intelligent question.

Mr. John Walsh: The way it will operate is that it is the basis for the warrant. You would have probable grounds then to go apply to get a warrant.

Mr. Jack Ramsay: Should we clarify that?

The Chair: I understood it that way too. The fact that it exists in the data bank doesn't prove the case. What you then do is you use the match. You say here's the sample in the data bank and here's the crime with all of its evidence. You do the DNA test with all the evidence and bingo, A and B match. So now you go back and you say to the court that we have a match in the data bank and we want a warrant to take a sample from this guy in order to have a fine sample for this time so that we can prove our case. They do it and away they go.

Mrs. Sheila Finestone: Even so, the other murder isn't looked after that we were talking about in the Borden case.

The Chair: Right.

Mr. Jack Ramsay: I'm sorry, I'm still a little bit confused. If you run your sample at the scene through your data bank and you get a match for this person, isn't that it?

Mr. John Walsh: No.

Mr. Jack Ramsay: Why not?

Mr. John Walsh: Because it's a matter or proof, a matter of evidentiary proof. The prospects of trying to prove your case by some certificate from the data bank or proving when this person's sample got into the data bank, who took the sample, and things of that sort would be just horrendous.

The Chair: You may not have continuity of the evidence, so you would be in position where you would have to go.... As a crown, I wouldn't want to try it. You'd have to go to court with this piece of paper or this piece of film or whatever it is and say somehow we certified that....

Mr. Jack Ramsay: It's treated differently with fingerprints.

The Chair: No, because with fingerprints you still have to have an expert come. Unless the defence agrees that those are Jack Ramsay's fingerprints, you'd still have to have somebody come and say I've compared these, here's the sample, here's the known sample, and go through the formal process of proving it.

Mr. Jack Ramsay: But if you find a fingerprint at the scene of a crime, you run it through the system and it identifies Joe Blow—

The Chair: Then you arrest Joe and take his prints.

Mr. Jack Ramsay: That's right. That's sufficient evidence to arrest and charge.

Mr. John Walsh: What you do is just—

The Chair: Arrest him and take his prints.

Mr. Jack Ramsay: What's the difference with the DNA?

Mr. John Walsh: It would be the same kind of approach. If you have a match in the data bank, then what you would do is apply to a judge and say we have a match in the data bank.

Mr. Jack Ramsay: But why would you need the second sample?

The Chair: Think back to when you were an RCMP officer. You get a print case; you've got prints at the scene; you run it and the prints belong to Shaughnessy Cohen. So you come out and you place Shaughnessy Cohen under arrest and you charge her with break and enter.

Mr. Jack Ramsay: No, murder.

The Chair: Okay, murder. You take her prints when she's arrested. Under the Identification of Criminals Act, you take my prints.

The prints you use to prove the case in court are the prints you took the second time, not the prints out of the database. You use the prints that you took, and you can prove you took my prints at the police station—“I was there and I saw her give those prints”.

Mr. Jack Ramsay: Without that second sample, you don't have a case?

The Chair: It would be tough, unless you had the guy who took the first sample. You'd have to have the technician there.

My DNA is at the scene and my DNA is in the bank. So you go through the whole thing and you try to prove it from the DNA in the bank. You're going to have to find the person who took my blood, if it was a blood sample. You've got all sorts of continuity problems.

• 1800

Mr. Jack Ramsay: If the bank is created, do you think that the integrity of the bank would eventually eliminate the need for the second sample?

I remember when radar first came out, we used to have the technician come in and explain the radar function. Soon after that they didn't need that. Or not soon after—thousands of cases after that, they didn't need it. The judges heard this testimony over and over again, and finally they got to a point where they didn't need the technician. Is this different?

Mr. John Walsh: One of the concerns with respect to the integrity of the bank is the less intervention you have in the bank.... If you had to start a procedure whereby you start actually bringing evidence out from the bank to prove your case, you're affecting the integrity of the bank. One of the privacy concerns is to try to make sure that as few people as possible are mucking around inside it.

The Chair: We could legislate a certificate system, but it would be a nightmare and it would be challenged.

Mr. Jack Ramsay: I think it'll come to that.

The Chair: Mr. Muise, did you have a...?

Mr. Mark Muise: I just have a comment to Ms. Shaughnessy's comment.

The Chair: That's Mrs. Finestone.

Mr. Mark Muise: Finestone, yes, sorry.

The Chair: I'm Cohen.

Mr. Mark Muise: These long names.

The Chair: I know.

Mr. Mark Muise: The only comment I was going to make is we are here to debate and get different impressions. Yes, I heard your comment about bracket creep—not bracket creep, but the other creep. But I guess sometimes the same question can get a different answer.

Mrs. Sheila Finestone: Absolutely.

Mr. Mark Muise: I just didn't want you to think that I was....

The Chair: She doesn't think you're....

Mr. Mark Muise: I didn't want to be judged by the group here; I wanted to ask my question.

The Chair: You're presumed innocent.

Thank you. This file is the most interesting thing we've done in ages, on a whole bunch of levels. You've been really helpful. We really appreciate you coming. We may find a reason to call you up again. Thank you very much.

We're adjourned.