JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 17, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): This is the justice committee and this is Bill C-3, an act respecting DNA identification. We're also taking a look at Bill C-104, which was forensic DNA testing and the warrant provisions, from the first session of the 35th Parliament. We sometimes forget that we're also looking at Bill C-104.

We have today as an individual presenter Inspector Gary Bass, who is the officer in charge of E Division, the major crime section of the Royal Canadian Mounted Police.

Inspector Bass, we're very glad to have you here. We're in a quagmire at this point in trying to get our minds around the science, the technology, and the significance to law enforcement. So we would be glad to hear from you and then we'll have lots of questions.

Inspector Gary Bass (Individual Presentation): Thank you, Madam Chairperson.

Ladies and gentlemen, I would like to thank you for the invitation to speak to you regarding this very importance piece of proposed legislation, Bill C-3.

My current responsibilities within the RCMP are as the officer in charge of the E Division, Major Crime Section. E Division is the RCMP designation for the province of British Columbia.

Within the major crime section are four separate units, which the proposed DNA banking legislation impacts upon.

They are the serious crime unit, which provides expertise in homicide and other serious criminal investigations throughout B.C. and elsewhere in Canada, and the unsolved homicide unit, which was formed 18 months ago and includes members of the Vancouver Police Department and RCMP. This unit was formed in recognition of the fact that there were some 600 unsolved homicides in the province of B.C., the majority of which occurred after 1980.

Also included is the criminal investigation unit, which offers province-wide assistance in primarily homicide and sexual assault investigations; and the behavioural sciences group, which comprises ViCLAS, the violent crime linkage analysis section, the psychological profiler, and the geographical profiler. ViCLAS is a nationwide computerized analytical unit that links violent offences through the analysis of data collected through investigation.

All of these units are mandated to provide assistance to other RCMP sections as well as to municipal police departments.

Forensic DNA technology is one of the most significant technological advances in police work since the advent of fingerprint technology.

The enactment of Bill C-104 was another significant milestone, which immediately provided police with the ability to secure identification evidence in support of specific criminal investigations.

The way police view DNA evidence must be clearly understood, and that is that it is identification evidence and nothing more. The evidentiary value of the presence of a suspect's DNA at a crime scene will vary significantly from case to case. In the end, however, it is identification evidence, no different in many ways from fingerprint evidence, perhaps even photographic evidence, or even reliable eyewitness identification placing a suspect at a crime scene. The true value of DNA evidence derives from the fact that there is a much stronger likelihood that a suspect will leave DNA at a crime scene as opposed to fingerprints.

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In the case of fingerprints, the suspect has many variables potentially working in his favour. He may take precautions such as wearing gloves. He may not touch anything at the crime scene. He may touch a surface that does not lend itself to later recovery of the prints. Prints left may be unsuitable for identification, or adverse climatic conditions may destroy otherwise good prints prior to the police attending at the crime scene.

DNA offers greatly enhanced opportunities to the identification process. In a case of the less cautious criminals, DNA may be left in many forms. It may be left through seminal fluids in sexual attacks or from saliva in bite marks, cigarette butts, or chewing gum. It can be left in the form of hair, blood, and flaked skin.

A few months ago, the root sheath from a hair was required to extract DNA. It can now be extracted from pieces of non-root hair in many cases.

The science is quickly approaching the ability to extract DNA from frequently handled objects. It is progressing so quickly in fact that the main challenge now faced by police investigators is to be able to actually locate and to retrieve at crime scenes the minute exhibits that would potentially yield suspect DNA. The chances of a suspect unknowingly leaving material at a crime scene capable of yielding his DNA profile are extremely high, compared with fingerprints, which are more easily controlled by the cautious criminal.

From the perspective of the police, the proposed DNA Identification Act has implications. Bill C-104 gave police the ability to obtain warrants to link specific suspects to specific crimes. Our experience to date with provisions legislated under Bill C-104 has been positive. It has been used virtually since the day it came into force throughout our province and of course throughout Canada.

One significant shortfall in violent crime investigation in this country is our inability to link cases, not only between different police jurisdictions but also within individual forces and departments, including within the RCMP.

ViCLAS, as I mentioned earlier, is to provide some relief to this problem through subjective analysis of investigative data. We see the proposed DNA data bank as an important bridge in this analytical gap.

The automated fingerprint identification section, or AFIS as the acronym is known, is the closest analogy that can be drawn to the DNA data bank. B.C. AFIS makes on average 1,200 hits per year, meaning that a suspect print, either from a known or unknown person, is queried and is matched against either a known offender or against a particular crime scene. The DNA data bank would work in the same fashion.

There are two distinct ways in which the DNA data bank would assist police. The first and most obvious benefit would be the linking of a specific suspect from the convicted offenders index to a crime scene in the crime scene index. The second use would be the linking of cases within the crime scene index not linked to a specific person. The value of this type of linkage is narrowing the field of suspects. Linkage of cases even with an unknown offender can provide valuable leads to police investigation when police consider such aspects as motive and opportunity.

The proposed legislation will provide valuable assistance to the police and the investigation of all those offences outlined in the primary and secondary designated offences under section 487.04 of the Criminal Code. However, for the purpose of my evidence here today, I want to focus on sexual offences and sexual homicides.

These offences have the greatest impact on victims, society as a whole, and police resources. Even people not directly related to these offences are affected by the fear that often spreads through our communities when these offences occur. Sexual homicides involving young children are perhaps the worst of these crimes.

Sexual predators who graduate to sexual homicide do so in a disturbingly familiar pattern. In many cases there is a wide range of relatively minor offences in which the offender becomes involved. Sexual offences sometimes start out in the form of sexual touching and gradually involve greater violence. Several documented cases involved break and entry offences, which evolved into sexual attacks when victims were encountered in the target premises. The first of the sexual offences are often separated by intervals of several months. Predictably, the intervals between offences become shorter.

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Extensive research conducted on sexual offenders has revealed two important differences between offenders who increased their level of violence in subsequent attacks, whom we'll call increasers, and those who did not. They discovered that, one, increasers had on average twice as many victims and, second, that increasers attacked more frequently. On average they waited only one-third the time between attacks as did non-increasers.

In another study conducted on 41 serial rapists, researchers looked at the first, middle, and last rapes committed by each of the rapists. They found that, one, the use of physical force as opposed to intimidation, threats, or presentation of a weapon was chosen more frequently as the method of controlling the victim. As the offender progressed from the first to the last rape, the character of the assaults became progressively more invasive and the offender was more likely to attack a stranger in each subsequent attack.

One example of this type of behaviour in the province of B.C. involves Trevor Rodney Peters, who was first charged in June 1985 with assault causing bodily harm. In June 1987 he sexually assaulted a 16-year-old female victim. On April 19, 1990 he committed a sexual assault with a weapon on a 17-year-old female victim; on June 28, 1990 he committed an aggravated sexual assault and attempted murder on a 15-year-old female victim; on August 12, an aggravated assault on a 12-year-old female victim; and finally, on August 26, 1990, the sexual murder of a 21-year-old female victim.

With today's DNA technology and proposed banking legislation, the first offence would have been a secondary designated offence and police would have had to apply to have his DNA taken, profiled, and banked. This person was not identified until he was apprehended for murder in 1990. Banking his DNA in 1985 would have probably identified him as the suspect in the first sexual assault and may have prevented those other sexual assaults and the murder that followed.

Regardless of whether his DNA was banked from the first offence, a DNA data bank would have linked the subsequent offences to one unknown offender and perhaps allowed police to identify and arrest him before he graduated to murder.

Peters' modus operandi is all too familiar in terms of sexual predators who progress to sexual homicide. We frequently see a progression of increasingly more violent sexual behaviour and sexual assaults, culminating in sexual homicides.

I believe for a number of reasons the case of Clifford Robert Olson provides useful insight into various aspects of the currently proposed legislation. Not only is it a case that many Canadians have some knowledge of, but his early criminal history is not dissimilar to that of many of our most violent offenders. His criminal convictions date back to July of 1957 for break, entry, and theft.

Under the proposed legislation this would be a secondary designated offence under section 487.04. Pursuant to proposed paragraph 487.05(1)(b), application in theory could have been made at that time to take a sample for DNA analysis and entry into the DNA data bank.

By 1960 Olson had added convictions involving 19 offences of theft and break and entry. Through the 1960s he was convicted of a further 43 offences, which included break and entries, armed robbery, false pretences, and escapes. Through the 1970s he was convicted of another 25 offences involving similar crimes.

Between 1961 and 1982, 16 offences were either stayed or dismissed. One of these was robbery with violence in 1978. In April of 1981 stays were entered on indecent assault, buggery, rape, and gross indecency charges. By this time Olson had already killed his first known victim.

Given this backdrop, it's useful to examine what may have happened in Olson's case had we had DNA technology and the legislation proposed in Bill C-3.

There were several occasions during Olson's criminal career when DNA may have been taken pursuant to a secondary designated offence having been committed. It is unlikely that authorization would have been sought in the first instance. However, many more opportunities presented themselves over the following years.

Until 1980 there had been no primary designated offence for which he had been charged. In November of 1980 he was charged with buggery in relation to a 15-year-old male. Olson's first known murder victim died November 19, 1980. Just six weeks later, on January 2, 1981, Olson was charged with rape, buggery, and other sexual offences and weapons offences in relation to an offence that undoubtedly would have ended in murder had the victim not escaped. In April 1981 these charges were all stayed by the crown.

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On April 16 Olson's second victim was murdered, and five days later his third. The murders continued into August. Twice through that summer he was arrested and charged for sex-related offences and released again on bail. On July 2, a warrant for Olson's arrest for sexual assault was issued in relation to an offence committed two weeks earlier.

We will never know how many sex-related offences Olson committed before and during the time he was committing the murders. However, there were many; by some accounts in excess of 100. We learned of previously unknown victims as recently as last summer.

Under the currently proposed legislation, Olson's DNA profile would not have made its way into the DNA data bank for the rape, buggery, and indecent assault charges, which were later stayed.

There is absolutely no doubt that Olson had committed numerous other sexual offences prior to 1980. There's a strong possibility he had committed murder before 1980. Given today's technology and appropriate legislation, another Clifford Olson could be apprehended much sooner in his criminal career.

In Olson's particular case and with today's technology, he would probably have been apprehended after the first murder, if his DNA had been banked pursuant to the long history of secondary designated offences or if legislation permitted the taking and banking of DNA upon arrest and charge.

I've used the Olson case as an example because it clearly illustrates the points I'm trying to make. One is that violent sexual offenders progress through a pattern of other criminal activity. Two, once they become involved in sexual offences, there is a predictable pattern of increasing violence and shorter intervals between the offences.

Having said this, I do not want to leave the impression that this case is in any way unique in terms of the value of the DNA data bank to police investigations. Unfortunately, there are all too many criminals with characteristics similar to Olson's. The large number of homicides involved is unique; however, the frequent sexual attacks are not.

It is this category of offenders for which DNA data banking has the greatest potential in terms of gross numbers of criminal offences. The ability to data bank their DNA profiles at the time of the first offence charge provides the best chance to interrupt their criminal careers.

It is highly unlikely that a serious sexual offender will be arrested for their first offence. Most first-time offenders will be granted bail, so it is important any previous similar activity be identified at that time. Linkage to other cases at this stage would provide stronger evidence through which bail could be opposed. Submission of the DNA profile upon charge affords the opportunity to address these concerns.

The gross numbers of DNA profiles, which will be contained in the proposed DNA data bank, will be relatively small compared with our fingerprint files. Searching and cross-referencing, once the infrastructure is in place, will be relatively fast. There is no reason the DNA data bank should not work as well or better than the automated fingerprint identification section.

The value of the proposed DNA bank cannot be overstated, if used to full potential. There is indeed a valid public interest in the early detection, arrest, and conviction of offenders. In the class of offenders that we are discussing, early detection often means the prevention of further serious harm or loss of life.

Another important consideration is the substantial savings in investigative costs that can be realized. In the case of serious sexual offences and homicides, investigations can quickly escalate into the millions of dollars. I can name several in this category over the past five years in the province of British Columbia alone, some of them approaching $3 million to $5 million in investigative costs.

The DNA data bank has the potential literally to end an investigation after weeks as opposed to years.

Police personnel involved in the investigation of serious criminal offences view the proposed DNA banking legislation as an opportunity to significantly reduce the instance of these types of crimes through early detection and intervention in the criminal careers of these individuals.

The ability for police to start this process at the time of arrest and charging of a suspect is seen as an important factor in utilizing the forensic technology to its full potential. There is sometimes a narrow window of opportunity to apprehend this type of offender during the early offences, before the offences become more frequent and more violent.

Some have argued that by virtue of the more intrusive nature of DNA collection—for example, the plucking of hair and taking of blood as compared with the taking of fingerprints—samples for DNA analysis should not be entered into the DNA data bank until after conviction. In further support of this position, it's argued that the nature of the information that might be derived from the DNA profile violates the expectation of privacy.

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Both Bill C-104 and the proposed Bill C-3 recognize these legitimate concerns, and have distinguished themselves from the provisions of the identification of criminal acts in that a much narrower range of criminal offences—the most serious of offences—resort to this investigative process.

From the police investigator's perspective, in the investigation of serious criminal offences—in particular primary designated offences such as sexual offences and homicides—there would be significant benefit in entering suspect DNA into the data bank at the time the suspect is charged. I believe this would be a reasonable and fair approach that would balance the legitimate privacy concerns of individuals against the public interest in the detection and prevention of serious criminal activity and in effective law enforcement.

Thank you.

The Chair: Thank you, Inspector Bass.

Jack, do you want to go first? I'm going to do five-minute rounds, and we'll see how that goes.

Mr. Jack Ramsay (Crowfoot, Ref.): Thank you, Madam Chair.

Inspector Bass, I want to thank you for attending, and I want to thank you for your presentation. Five minutes doesn't give me an opportunity to ask very many questions, and your answers are also included in the five minutes, so if you could keep them short and precise.... Of course we don't want to limit you.

The Chair: Jack's questions are more important than the answers.

Mr. Jack Ramsay: Well, we'll see.

Proposed section 487.055(1) of Bill C-3 would allow the authority to take samples from people who have already been convicted. It's called the retroactive part of the bill. But it limits it to taking DNA samples from those who have been convicted and declared to be dangerous offenders and those who have been convicted of two or more sexual offences.

I am concerned that is too limiting. I would ask you—before I ask you about whether or not you feel that should be expanded to a greater category of offences—how many unsolved homicides as well as sexual assault cases are you aware of that have DNA samples left at the scene?

Insp Gary Bass: I don't think I could give you a specific number, but it is a reasonably high proportion of cases where there is DNA left in some form. I guess the art is being able to detect it.

Mr. Jack Ramsay: That is for unsolved cases?

Insp Gary Bass: Yes.

Mr. Jack Ramsay: All right. Then let me ask you this—

Insp Gary Bass: For any cases.

Mr. Jack Ramsay: I'm talking about unsolved cases, because the benefit of taking DNA samples from those already incarcerated would be to clear up at least some of these unsolved cases by way of comparison.

Insp Gary Bass: Yes.

Mr. Jack Ramsay: I think that's the purpose of it.

In your opinion, would you want to see that particular category expanded?

Insp Gary Bass: I think it should be expanded. I think there's a real problem with the dangerous offender terminology. We don't use it to the point that it should be used, simply because of police resourcing. There are in fact a lot of dangerous offenders in our institutions who are not declared dangerous offenders under the Criminal Code. That's the case with Olson, of course.

Mr. Jack Ramsay: Could you give the committee your opinion as to what offences beside the dangerous offender category and the two-sexual-offences category ought to be included under this section, if we were to expand it?

Insp Gary Bass: I think the bare minimum should be any of the primary designated offences, and those are obviously the most serious of offences. My personal view is that I would like to see it include the primary and secondary designated offences.

Mr. Jack Ramsay: Okay—that's your minimum and your maximum, then. Thank you.

You have indicated that you would prefer the bill to allow for the taking of DNA samples after charge, rather than after conviction?

Insp Gary Bass: Correct.

Mr. Jack Ramsay: Okay. What is your understanding between that authority and the authority presently existing under Bill C-104 for taking samples?

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Insp Gary Bass: Under Bill C-104 there's a scheme that permits the taking of samples with a warrant. The standard in that case is reasonable and probable grounds to believe the person has committed an offence, or that evidence will be obtained, which is the same standard upon charge that there are reasonable and probable grounds to believe that a person has committed an offence.

Mr. Jack Ramsay: The last question in my five-minute round has to do with the integrity of the bank. We have heard witnesses, and I'm sure we'll hear additional witnesses, who will raise concerns about privacy and so on. Do you have any concern about the integrity of the bank?

Insp Gary Bass: I don't, but I certainly understand those concerns. I think the legislation needs to involve any steps deemed necessary to ensure that is protected. Going back to what I said earlier, from the police investigator perspective, the only thing we're interested in is that profile. We don't need any of the other information that comes from DNA analysis and which raises some of the stronger concerns.

So from the police investigator perspective, any assurances or legislative safeguards that can be put into place—we have no problem with that. I don't have any concerns in terms of the security of the information, and I can only base that on our experience with fingerprint information. I'm not personally aware of any concerns over the years, from a privacy perspective, with unauthorized release of that information. I'm not saying there haven't been, but I'm not aware of any.

Mr. Jack Ramsay: Thank you.

I'd like to come back to that, Madam Chair, but my time is up.

The Chair: Mr. Mancini, five minutes.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you for coming before us, constable.

I have a couple of questions. You indicated—I think this was followed up a little bit by Mr. Ramsay—that you're in favour of taking samples at the time of arrest. You understand the argument that it may violate the expectation of privacy, but because it's a narrow range of designated offences, you think that creates an exception to the privacy argument.

Insp Gary Bass: I do, and I want to stress that these views—I understand the opposing views, and my views aren't necessarily those of the senior management of the RCMP. I have to put forward the views of the people who are dealing with these offences on a day-to-day basis, and it is my view that the much narrower range of offences is the safeguard that distinguishes this from fingerprints.

Mr. Peter Mancini: If we follow that, the range of offences carry some of the most serious penalties in the Criminal Code. Correct?

Insp Gary Bass: Yes.

Mr. Peter Mancini: So surely if there was an area where we shouldn't violate the expectation of privacy, it should be in those offences for which the citizen can be most severely punished. That's where the greatest protection of civil rights should be, shouldn't it?

Insp Gary Bass: I don't know if I follow that line of questioning.

Mr. Peter Mancini: If we say that taking samples at the time of arrest does to some extent violate the expectation of privacy, but we're going to make an exception here because there is a narrow range of designated offences, and that narrow range also carries the heaviest penalties—

Insp Gary Bass: Yes, they do.

Mr. Peter Mancini: —surely the right to evade that invasion of privacy should be for those most serious offences.

Insp Gary Bass: I see it operating in the exact opposite direction. I think the considerations to be balanced have to take into consideration the nature of the crimes and the public's expectation to be protected from those types of crimes.

Mr. Peter Mancini: I have one other question. Correct me if I'm wrong here, but I gather from your testimony before us today that the science is becoming so refined that the primary purpose of the DNA data bank would be to connect accused, or offenders, to previous crimes—that in fact at the crime scene now, we can get the DNA information from almost anything they touch, whether it's a glass, whether it's.... I mean, it's readily available at that point.

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Insp Gary Bass: Our lab personnel may not call it that easy, but it is rapidly progressing towards that direction. One of the real values is that we can go back to cases that go back a number of years and extract DNA from exhibits where we didn't know the evidence previously existed. We have actually done that in a number of cases over the past year.

Mr. Peter Mancini: Okay. Thank you.

The Chair: You still do have some time, if you have more questions.

Mr. Peter Mancini: That's okay. I'll pass. Mr. MacKay can use it.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Mancini, and thank you, Inspector, for being here.

My questions touch on the area of designated offences. We heard from a very prominent criminal lawyer who expressed an opinion that there are certain offences that are designated that he has some difficulty with. I wanted to pose those sections to you for your opinion. In particular, I keep in mind the comments you made about how there is quite often a pattern of elevation in terms of a person's violence, and a propensity to increase that level.

So my question is specifically with respect to common assault, sexual assault at what they call the low end of the seriousness, and another specific offence I'm sure you're familiar with—section 163.(1) of the Criminal Code, which deals with child pornography. There is a difference of opinion as to the inclusion of those offences as designated offences, the argument being that there is no correlation and no necessity to take DNA for those types of offences. I would be interested in your opinion.

Insp Gary Bass: I think the scheme proposed in the primary and secondary designated offences, with perhaps one or two exceptions you've noted, is fine. I think the child pornography provision should be a primary designated offence.

I made reference to a couple of studies that indicate escalation of activities through a range of relatively minor criminal offences as having been noted, but anyone who has been involved in major crime investigations for any length of time doesn't need studies to see that. It's a very common and predictable behaviour pattern with these offences, and we very frequently see the Olsons of the world involved in this typical kind of behaviour early on.

There is value in those kinds of offences like breaking and entering and theft being here, and I think they're properly placed where they are, as a secondary designated offence. I think that's a good balance.

I think the pornography-related charges.... Any of the sexual-related charges should be in as a primary designated offence. That's typically where we see the early progression before the more violent sexual activity, and it's an opportunity for police to step in and cut that activity short.

Mr. Peter MacKay: As a follow-up to that, with respect to the sections that pertain to absolute discharge scenarios, where an individual is subsequently granted a discharge by the court, what is your feeling on the preservation or the retaining of DNA in that scenario?

Insp Gary Bass: With anything other than an acquittal, I think there should be some provisions for retaining the sample. There are a number of practical realities here we have to deal with as police investigators, like plea bargaining, or offences that don't get charged. Often a person's criminal record really doesn't represent what they've done. As a matter of fact, I would say it would be highly unlikely if you found one that did. So I think that's an important consideration.

Mr. Peter MacKay: Similarly, with respect to the retroactivity element—and you touched on that in your presentation—do you feel there are designated offences where, given a person's criminal record or the potential for further violence, you should be able to go back and take a sample based on that criminal record, even though those offences have changed in definition or may not fall specifically within the guidelines of this legislation?

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Insp Gary Bass: I think there's room for a lot of discussion on what the category of offences might be, but I think it must be considerably beyond what it is now in terms of the dangerous offender and the multiple sexual offences. I think it has to go beyond that.

Mr. Peter MacKay: At a very practical level, the taking of the actual samples, what's your opinion as to the potential for abuse by a police officer in his taking of the samples? How do you see the progression of the methodology of taking and retaining the samples?

Insp Gary Bass: In my particular section we've hired a private nurse, and we've trained. We've put on one-day training sessions for the investigators who are most likely to be collecting samples.

We will use medical personnel when we can. In a number of cases when we go into the community and ask for large numbers of samples, which are freely given in most cases, to eliminate suspects, we need police investigators.

I don't really see any concerns about physical harm, if that's what you're saying.

Mr. Peter MacKay: I guess the argument initially around the taking of samples was that there was potential for abuse. In the case involving Mr. Legere, in New Brunswick, there was talk of its being a very intrusive method of taking samples.

Insp Gary Bass: Yes.

Mr. Peter MacKay: It seems, though, it is progressing to the point at which it is less and less intrusive. They can take swabs. There's sort of a vaccination-type approach whereby you simply take a very small sample of skin. Do you think this will alleviate the concerns of intrusiveness?

Insp Gary Bass: I do. I don't think it's very intrusive at all now the way the samples are taken.

I don't know if anyone here has ever had their fingerprints taken, but it involves about ten minutes of someone rolling your fingers around in an ink pad and over a piece of paper.

The kind of sampling we're talking about for DNA is a skin prick on the end of a finger or the pulling of a hair.

I understand the arguments in terms of intrusiveness into the body cavity, but it's probably more comfortable than having your fingerprints taken.

Mr. Peter MacKay: Okay, thanks.

The Chair: Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I wanted to focus on the issue of how this will be used in plea bargaining.

I'm the crown, Mr. MacKay is the defence attorney, and we've arrived at a deal—he's seen the light, his client's done. He raises the issue: “I'm going to plead guilty, but don't bank me.” I can almost hear the words. How's that going to play out in the handling of pleas of guilty? I'd be interested in your comments.

Insp Gary Bass: In terms of primary designated offences or secondary designated offences?

Mr. John McKay: This is in the discretionary offences, under which he can still make an argument as to whether this fellow gets banked or not.

Insp Gary Bass: I wouldn't like to see it happen.

In many cases police are consulted on plea bargains, but it would pique my interest if the individual wanted to keep his DNA from the bank. Whether or not it will happen, I can't say. It could happen, but it's not something I would want to see happen.

Mr. John McKay: The scheme of the legislation almost sets it up in advance, doesn't it?

Insp Gary Bass: It certainly offers the opportunity.

I'm not opposed to the secondary designated offences. But getting back to the practical realities of what police have to deal with, police, certainly where I'm from and in most parts of the country, don't have the time to do nice-to-do things any more. I'm afraid that some of the secondary designated offences will become nice to do.

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Mr. John McKay: But they'll drop off?

Insp Gary Bass: I think so.

It's the same analogy as the dangerous offender applications. In my section alone we do 50 to 60 homicides a year; 95% of those could probably be classified as dangerous offenders, because the ones we do are primarily first degree. We do maybe one a year.

Mr. John McKay: The legislation almost sets up this game, whether you're going to fall into the primary or the secondary designation.

Insp Gary Bass: It does.

Mr. John McKay: The defence is going to try to pull it down to secondary, the crown is going to try to pull it up to primary, and you're going to end up in that game.

Isn't that game also going to get played out at the stage of getting warrants?

Insp Gary Bass: The defence wouldn't be involved at that stage.

Mr. John McKay: Wouldn't those also be judicial considerations at the time?

Insp Gary Bass: Yes.

Mr. John McKay: Primary, secondary, in-out—if you're a police officer, at that point you're going to wonder how you're going to maximize your evidence to raise the offence so that you can do your material. Isn't that what it boils down to? Again, you're forced to do that by the scheme of the legislation—primary, secondary.

Insp Gary Bass: I don't know about that. Those problems may well be there. I have no problem with the distinction in the classification of offences, but I do see the problems in the practical sense of trying to administer it. I don't know how you rationalize that.

Mr. John McKay: Unless you walk away from the scheme of primary and secondary and call a spade a spade...everything is primary, there's no discretion, it's there.

Insp Gary Bass: That certainly wouldn't be a problem from the police perspective, but—

Mr. John McKay: No, I didn't think it would be.

Insp Gary Bass: —we can certainly live with it the way it's proposed. If that balance is required to see this legislation pass, we don't have major concerns, but there will be difficulties.

Mr. John McKay: Thank you.

The Chair: Thank you, Mr. McKay.

Are there any other government questions?

Well, Mr. Ramsay, take a few more minutes. I won't give you a number, I'll just ambush you.

Mr. Jack Ramsay: Shut me down when you want.

Do you anticipate an undue reliance by investigators on DNA evidence? In other words, the conclusivity, if I can use that word.... We're inventing words. Are we allowed to invent words?

The Chair: Go ahead, you're a member of Parliament, you can make up whatever you want.

Mr. Jack Ramsay: Good.

The conclusive nature of this kind of evidence is so powerful that it gets people like Guy Paul Morin off the hook, and Milgaard as well. I shouldn't say off the hook; they were innocent. The opposite is true: if it can clear people, it can condemn them.

Insp Gary Bass: Well—

Mr. Jack Ramsay: Perhaps I could finish.

That is one area of concern I think we should be aware of. The other is from a practical field investigator's point of view. If there is DNA evidence at the scene, is it going to create an unhealthy or an improper reliance upon that and are we going to see investigative officers not really completing the thorough investigation they do now to gather all the other types of evidence? Do you sense that there might be a tendency to develop that kind of reliance upon DNA evidence when it's found at the scene of crimes?

Insp Gary Bass: DNA evidence, as I said earlier, is nothing more than identification evidence. It is not indicative of a person's guilt or innocence. The probative value of DNA evidence will vary from case to case, but it is nothing more than identification evidence.

In the cases you've named, such as that of Guy Paul Morin, it's possible in theory for fingerprint evidence to do the same thing. For example, if the person was convicted of murder and the circumstances were such that there was a fingerprint on a knife and it had to be the murderer's fingerprint, if you were to go back ten years later with new technology and you were able to develop that print, it would do the same thing DNA would do.

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People get hung up on thinking that DNA is something more than what police see it as. It's identification, another means of putting a person at the scene of a crime, and nothing more than that. We don't care what the DNA profile is from the material. We don't care what's done with the material after we get our identification from it.

Mr. Jack Ramsay: Let me ask you something else—and I have to use a hypothetical case in order to make my point. We have different identification systems. We have a fingerprint identification system. We have the handgun registration system that is supposed to be an identification system. But in that particular system—and I'll quickly give you the example—a gentleman who owned a handgun was contacted by the police from Edmonton, who told him they had his handgun at the scene of a crime. He said no they didn't, his was locked up in the safe. And it was.

What would happen, then, if it was determined that my DNA was at the scene of a crime even though I was not there? In other words, if you run the DNA evidence through the bank and it comes up matching my DNA for some reason or other, how conclusive would that evidence be, bearing in mind that the proof of that sample would tie me in with the crime without question?

Insp Gary Bass: DNA evidence is one piece of the case, and it has to be taken into consideration and weighed in terms of the totality of the evidence. In the case you're describing, that is a faulty analysis. I would think that in a case like that, there may be some other evidence that would show you weren't involved. I don't know what that would be, but there has to be more than DNA to prosecute a case. DNA is not evidence of guilt.

Mr. Jack Ramsay: I don't want to belabour this, but when we see all other evidence simply rejected as a result of the DNA classification or DNA evidence, particularly in the Morin case and the Milgaard case, then I think the reverse situation should be considered. I ask you about that; that's my question.

Insp Gary Bass: Well, I think the same consideration would apply when say, for example—we won't use one of the named people—someone was convicted of a sexual murder and years later a DNA test was done and it was determined that the DNA, in the case of a sexual assault or sexual homicide, did not belong to the person who was charged. That doesn't mean he's not guilty or not the person who did it. There are any number of factors. For example, a female victim may have had sexual contact with another person and the person who killed the female victim may not have left a sample. All of those factors have to be considered in an investigation. The absence of a person's DNA doesn't mean anything either.

The Chair: Thank you, Mr. Ramsay.

Mr. Mancini, did you have a brief question?

Mr. Peter Mancini: I have one brief question, and it comes to mind when you talk about the police. You say the resources are not there to do the nice work. Is there concern among the rank-and-file investigative officers—and this carries along a little bit with what Mr. Ramsay was saying—that the funding agencies are going to say to you guys that they now have a DNA data bank and no longer need as many resources, that they can cut back a little bit more because of this high scientific evidence, that if you get the right sample, they can get the conviction, thanks a lot? Is that seen as a justification to cut back on resources, or is there concern about that?

Insp Gary Bass: No, I've never heard that concern. Any of the people I deal with within the police community understand that DNA is nothing more than another means of identification, albeit an important one. No, I haven't seen those concerns raised. I think it will save money.

• 1100

The Chair: Thanks, Mr. Mancini.

Inspector Bass, thank you very much for another piece of the puzzle. We really appreciate your contribution. Thank you.

• 1101

• 1108

The Chair: We're back with the National Action Committee on the Status of Women. We have Ms. Amy Go, who is the chair, and Fiona Miller.

Ms. Amy Go (Justice Committee Chair, National Action Committee on the Status of Women): I'm the chair of the justice committee and I'm on the national executive.

The Chair: Thank you. And is Fiona Miller a member of the justice committee?

Ms. Fiona Miller (Member, National Action Committee on the Status of Women): I'm a member of the NAC.

The Chair: Great. Welcome. I know you have some points to make to us and then we'll have questions.

Ms. Amy Go: As you are probably fully aware, NAC and other women's groups have consistently opposed the establishment of a DNA data bank. We oppose the government's pursuit of a law and order agenda in the name of fighting crimes against women. Don't do this in our name.

Violence against women is not a problem of technology or the lack of it. It is an entrenched socio-economic and political problem that can only be addressed when the power between men and women is balanced and equalized.

The development of a DNA data bank is not one of these strategies. It will in fact result in further victimizing, women because when you are giving more power to the law enforcement agencies you are victimizing women, when we are already mistreated in the hands of those agencies.

An equally devastating impact of this proposed bill is that many communities, such as the people of colour, the aboriginal communities, and the poor people communities, will be further criminalized. As you are aware, they are over-represented proportionally in our criminal justice system, not because they commit more crimes but because of the racism and discrimination against poor people they face in the system.

• 1110

I will turn to Fiona, who will address the impact of the proposed legislation on women who are victims of assault. She will also go into some specifics about the legislation.

Ms. Fiona Miller: I think we should start with a scenario. If the members of Parliament in this room believe that sexual assault is rare, extraordinary, and an indication of extremely abhorrent male behaviour perpetrated by the terrifying-looking strangers we see on the X-Files, then you will believe that this initiative and Bill C-105 before it were the priority and should be the priority of this government in fighting male violence against women. Unfortunately, that scenario is a myth. Sexual assault is sickeningly common. It is an aspect of patriarchal power and the oppression of women, and most women know their assailants. Feminists have for decades been making this argument and have argued that what is needed to fight male violence against women is substantive equality.

In the specific case of this bill we are pointing out that for the vast majority of cases of sexual assault, proving identity, which is what DNA forensics and a data bank will do, is simply not the point. It is beside the point.

We know that women are assaulted and murdered by strangers and we believe those women must be helped and must receive justice. Feminists do that work daily. So we're not saying the issues that might be addressed by this legislation aren't important, but those cases already receive disproportionate care and attention from police and courts—although it's still inadequate, obviously, as the Jane Doe case in Toronto establishes. This initiative, however, maintains the focus on what we consider to be an inappropriate framing of the reality. Where is the attention to the other assaulted women? Why are their concerns not a priority?

Specifically, the issue here is about identity versus consent. The majority of cases of sexual assault involve a woman establishing not who did it but whether or not her no meant no. This technology doesn't aid those women and may in fact hurt, because by encouraging police and crown attorneys to not pursue and to focus on identity cases, these cases of consent become increasingly unwinnable in their eyes. We all know that crown attorneys are attempting to pursue fewer cases and there are tremendous financial pressures in the court systems. So we believe we are going to see more women, in cases of sexual assault, not having their cases pursued with vigour by police and the courts.

Moreover, this emphasis on DNA forensics and the DNA data bank will encourage men to switch their defence from identity to consent. That means fewer cases will be winnable, because we know that consent cases, where the issue is consent and not identity, are less winnable already.

The next key issue here is about women's credibility and the burden of proof. The use of DNA evidence and the data bank involves dependence on experts, scientists and professionals. Canadian courts and police already prefer that kind of evidence. That's exactly the kind of evidence they want to get, and they are not interested in listening to women's voices and testimony. Much corroboration is demanded. There is tremendous devaluation. I think the Bernardo case exemplifies that scenario.

The Campbell report did a very poor job of pulling out some of the systemic problems for women, but it's still clear that women were reporting this man and women were not listened to. In that case, a man who was assaulting women was turned into a serial killer. He didn't start as a serial killer; he became a serial killer because police weren't listening to women. That is one of the reasons.

Moreover, DNA evidence is being entered into court cases with absurdly high probabilities. You know the cases where it's a thousand to one, and in some cases in the States the odds have been a million to one. This is absurd, because it ignores the reality of human technical error. We know that's going to happen. I notice your bill doesn't address issues of protocols to ensure that it happens less.

If a woman can get a conviction before where the odds were say nine to one, we're going to see courts now demand 99.9999999 to .00000, and I think that is a problem of credibility and the burden of proof.

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Another point concerns revictimizing women—and let me give you another scenario. A young woman who has been raped on a date goes to the hospital, goes through the forensic kit, and the hospital staff encourages her to provide a blood sample because they have detected foreign pubic hairs on her body. They want a blood sample because they say it is going to help to get him. This is happening, this is a lie, and this is absolutely inappropriate. She knows who the man is.

DNA evidence has nothing to do with that scenario. That scenario is going to be a case of consent, not a case of identity, and women are being misled. They are being encouraged to provide data they shouldn't be providing, and it's being led by forensic units and police in these cases.

Another key point that's specific to the data bank is assumptions about recidivism. Everyone in this room knows that the most marginalized members of society are pursued disproportionately by the police, are charged disproportionately by the police, are convicted because they don't present very well in court, because they can't afford a good defence, because they won't be able to contest sloppy science—and we're going to see that with DNA forensics. Their DNA will be banked disproportionately. They will be subjected to more coercive surveillance. The myth that these communities are most responsible for assaults—the kind of racist myth that permits the Toronto Sun to put billboards up in Toronto with almost entirely black men's faces on them—is perpetrated.

Those who are never accused, who are never charged—and you'll recall that Paul Bernardo's DNA was on file for two years, but they didn't pursue him because he didn't look like the criminal type—will not have their DNA banked. They will become serial killers or they will persist in sexual assaults. So assumptions around recidivism are improperly considered in relation to this bank because of the structural inequity in the way in which evidence is gathered and the way in which convictions are pursued.

Another major point specific to DNA material is the DNA mystique. We know that biological evidence is not new, but DNA is new in some important ways. One, of course, is that it provides more than identifying information. It does provide information about familial links, about diseases. Particularly since you are proposing to bank biological material—not information, but material—it is available for research. There is going to be tremendous interest in researching the correlations between criminality and various genetic aspects. That's one side of it, but you're not just talking about fingerprints.

Second, we have a major mystique around the idea that DNA provides answers, that it's the magic bullet, that it's the final solution. I do believe the promotion of these initiatives and the extent to which they have gone through without being subject to sufficient criticism—Bill C-105, as you know, was passed in one day—and not being subject to sufficient research is part of the mystique of DNA.

Let me just detail some of the particular aspects of Bill C-3 that we believe point out the extent to which you're promoting a very extreme bill. Not only do we oppose it generally as an initiative; this is an extreme measure.

First of all, the definition of “designated offences” is far too broad. The protection that you've introduced by suggesting that there are primary and secondary designated offences is meaningless. Permitting judicial discretion means that judges will, of course, demand that the DNA be banked and be gathered for, say, cases of break and enter when they don't like the look of the suspect—and we know that this means the suspect is poor, we know this means the suspect is a person of colour. That discretion condones structural inequities.

Moreover, the very real danger exists that the ceiling that you've established, the maximum number of cases that will be subject to DNA forensics and banking, is going to become a floor. The ability to gather DNA evidence in cases of, again let's say break and enter, will become something that police expect to have and courts expect to see. That means that cases in which the infringement of civil liberties and the infringement of rights could not be justified, it will just be done because it becomes commonplace to present this evidence in cases. It also means the costs of this data bank are going to explode. If you bank the DNA of all break-and-enters or attempted break-and-enters in this country, you're talking about an extraordinarily expensive initiative.

• 1120

Second, I've already made this point briefly about the retention of biological samples. You're not paying sufficient attention to the fact that you're dealing with DNA material, which has all sorts of research implications. The pressures to use this for research are going to be very high. Moreover, this legislation grants jurisdiction to the commissioner over both the information and the material, it appears, without specific safeguards to ensure that the commissioner does not use that material quite frequently or have recourse to that material for further profiling.

Another key point of this particular legislation is the perverse effects for women. It appears to us that women who are the survivors of sexual assault will find their DNA entered into the crime scene index. We see no provisions to ensure that this will not happen or to ensure that this material is destroyed. We're concerned that the legislation governing the requirement to provide a sample is broad enough to cover women survivors. We already know women are being pressured to provide their DNA. Are they going to be forced?

Finally, we're very concerned that the protections concerning the allowed use of the material gathered for DNA forensics and banking will not cover women. This is truly perverse. This is because the legislation specifies these restrictions for evidence gathered under warrant. And since women will most often be providing their samples voluntarily, does that mean that the same restrictions, the same protections, do not apply? We do know. We have reason to believe that women who are having their blood tested when they are survivors are also having their blood tested for the presence of alcohol and drugs.

Given the history of the relationship between the police and the courts and the vast majority of women involved in sexual assaults—not the high-profile cases—we fear that women could be criminalized and subjected to very undue and very perverse effects from this.

Another key point in your bill concerns exchanging information with international agencies. We think you've granted a very broad mandate to the commissioner for the exchange of DNA with international governments and agencies. The mandate is for investigation and prosecution of a criminal offence. That is fairly broad given what international governments and agencies will consider to be the need to investigate and prosecute criminal offences. We think this will mean that highly dangerous personal information is going to be exchanged with suspect governments and agencies, with minimal safeguards.

We also think this is going to lead to a major expansion of the criminalizing of potential refugees and immigrants. We already know that DNA forensic data is being gathered from immigrants who are seeking to sponsor families when that information should not be required, and we do think that the interest in investigating refugees and immigrants for criminal behaviour under the mandate is probably going to permit fairly broad testing or could well do so.

We are very concerned about another point. There is no proposal to destroy the information and the biological samples in the case of a person being acquitted. The information is just to be rendered inaccessible. This is unacceptable. Moreover, it's not clear whether the destruction should be automatic or upon request. That's already a major problem with our criminal justice system: in the case of a person who is acquitted, fingerprints are not automatically destroyed, which means there's far too much of that information on file. It shouldn't be there, because the person has been acquitted.

Finally, there is the issue of the expansion of the data bank. As I've tried to point out, because you're dealing with DNA information, the pressures to use this in research are going to be immense. I think that as the legislation has been drafted, stating that the commissioner can only use this material for preservation or “forensic DNA analysis”, it is still broad enough to warrant research and to permit research concerning forensic DNA analysis.

You're not considering what the pressures are going to be as these samples accumulate, as this publicly funded material accumulates in a data bank. The pressures are going to be enormous, and you have to recognize that given the structural inequities in the way that more oppressed communities are going to have their material banked, you are, in essence, funding and creating racist and class-based research into the nature of criminality. It is a very major long-term problem.

Ms. Amy Go: Two years ago I was invited to participate in a consultation with the justice department officers about this proposed legislation. The civil servants clearly admitted to us that the privacy commissioner had serious questions about this act. That's why we're very surprised and shocked to see that none of those concerns are addressed. The government chooses to put priority on imposing law and order rather than protecting and upholding the rights to privacy of our citizens.

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The Chair: You may be interested to know, just as a point of clarification and not to unduly interrupt you, that the privacy commissioner has been here and has expressed his views, and this committee takes them very seriously. We're not just having one day of hearings. We're having many witnesses.

Ms. Amy Go: We are opposed to this present legislation. We urge the government to not proceed with this kind of initiative. We are very concerned about the negative impact of this legislation on women and on the oppressed communities.

We hope you would rather spend the money on doing adequate research and looking at a feminist analysis of the impact of the current criminal justice system on women. I'm sure that data will show you how women are being treated and how women don't access the justice system, not because of the lack of proof of identity but because of the other various reasons we have laid out.

It's really a shame that while the government is proposing to spend $6 million annually on this DNA bank, you are withdrawing your support for women's groups. You are changing the core funding for women's programs to project funding. You have not committed to spend the $50 million that women demanded in the national anti-poverty march in 1995. Women across the country have been asking for real efforts in community initiatives and feminist strategies that will fight against male violence. You choose to ignore those initiatives and you choose to spend the money on a DNA bank.

We urge you to set the priorities on women, to change and reallocate the resources here to women's groups and to feminist strategies.

The Chair: Just as a point of information before I start the questioning, I don't know if you heard the previous witness, but he told us there were 600 unsolved murders in the province of British Columbia. He ventured to guess that in probably most of them there was some form of DNA evidence available for analysis.

As a criminal lawyer, I can tell you if a murder's unsolved it probably means there are no eye witnesses and the only eye witness is dead. I also know that for every one of those 600 murderers there's either a woman who's dead or there's a woman who in another way is a victim.

I don't know whether you turned your mind to the fact that this legislation will assist those women in terms of the solution of these crimes and that solving crimes is in our view—I'm sure I speak for everyone here—a worthwhile goal.

Maybe I've set the tone with that, and if I did I didn't mean to, but I can't leave it unstated that if there are 600 murders in B.C. unsolved, God knows how many there are in the rest of the country.

Ms. Fiona Miller: Can I respond to that?

The Chair: Yes.

Ms. Fiona Miller: I think it would be very convenient to believe we don't care about those things. We're not talking about that. But the issue here is an issue of priorities. Everybody here knows that there have to be some hard decisions about priorities.

We're not talking about disinterest in that. We are actually talking about an interest in more systemic ways of addressing those issues. We have tremendous evidence to establish that the issues in policing are not about technological problems for the most part—they really aren't. More money to technology for cops and more power to cops are not the way to solve most crimes.

The Chair: I think we're going to find out throughout this that police need these tools to solve these kinds of crimes. These kinds of crimes are very troubling.

I'm just pointing out that there are priorities and perhaps we are setting them. You're here to urge us to adopt your priorities, but there are other groups that are urging us otherwise. So we need to set some balance.

• 1130

In any event, I've been most un-chairperson-like, so you have five minutes, Mr. Ramsay.

Mr. Jack Ramsay: I don't mind your comments at all, Madam Chair.

The Chair: God, that's scary.

Mr. Jack Ramsay: From your presentation, would you recommend that the committee withdraw the bill?

Ms. Amy Go: What we would recommend is that the committee recommend to the government to withdraw the bill, yes.

Ms. Fiona Miller: At the least, I think we're saying that—and I kept using the term 105, but I meant 104—you have pursued this particular course, and I do not think that you have justified this particular course of action. I don't think you have taken....

There have been concerns expressed by women's groups for the last three years about what we believe is happening in sexual assault centres and what we believe is happening in hospitals when women who have been sexually assaulted come in. The emphasis is being placed on using women's bodies as receptacles for evidence, not as people who need to survive. The emphasis is on policing, not survival.

In the high-profile cases, why do you think the DNA data bank would have stopped Paul Bernardo? It wouldn't have. You have to recognize that this is a systemic problem of policing, and it is not going to be solved by technology.

Mr. Jack Ramsay: When you speak of women's groups, I have to say that I have a group of women in my family, and you don't represent them. There is nothing that you've said to this committee that I could tie in in the remotest way in connecting your representation to the group of women in my family. I just suggest to you that you are not expressing the opinion of all women's groups that I have come in contact with in my lifetime, and certainly not since I have become a member of Parliament.

I have a question that I'd like to ask you. You have focused very narrowly upon offences committed against women. That's a very important part of this bill, but that's not the only part. This bill deals with crimes committed against all members of society—children, men, women, and so on. In your condemnation of the bill, you have focused almost entirely upon just this one particular area, yet there are murders and assaults committed against more than women in this country. This bill addresses that.

I suppose I could ask you questions, but you made a statement here that DNA samples are being taken from immigrants. Well, who's taking those samples? Who's taking the DNA samples, and under what authority?

Ms. Fiona Miller: Why don't you know that?

Mr. Jack Ramsay: You've made the statement. I don't know that this is happening.

Ms. Amy Go: I just want to respond to a few things that you mentioned.

Mr. Jack Ramsay: Would you answer the question? I asked you a question.

Ms. Amy Go: NAC never claims that we represent all women.

Mr. Jack Ramsay: I placed a question.

The Chair: Order, order. There is a question.

Mr. Jack Ramsay: If you don't want to answer the question, that's okay—

Ms. Amy Go: I'm going to answer your question, but since you have raised a whole bunch of things, I think we also have the right to respond to them.

Mr. Jack Ramsay: Certainly.

The Chair: That's fine.

Ms. Amy Go: NAC never claims to represent all women, but I do want to point out to you that we do have a membership of over 600 women's groups across the country. At our general meeting we had a motion proposed by our membership to denounce the government on establishing the DNA data bank, and it was endorsed unanimously by our membership. We can therefore say that at the very least, women's groups that are within the feminist framework agree that we should not have this kind of measure. They agree that this kind of measure will not be an effective way to fight crimes against women.

I also want to point out that we've focused on women because we're using a feminist analysis to analyse your bill. We are afraid you and your researchers have not done so. At the Beijing 1995 World Conference on Women, the government agreed to do a gender analysis of all of its policies. Because you have not done so, we are doing it for you. We are telling you that if you use a women's gender analysis, this is what you will come to as a conclusion. In fact, this is your job, and what we're saying is that we are doing that analysis for you in the absence of the government's commitment.

• 1135

With regard to your questions about immigrants' DNA being taken, immigrants' DNA is being taken by the immigration department all the time in order to prove they have a family relationship with someone they want to sponsor. Do you know how much it costs them? It has become such a barrier for families and refugees with regard to being reunited in Canada.

Mr. Jack Ramsay: Have they set up a data bank?

Ms. Amy Go: That's the question. We don't know what happens to that DNA data. It's been taken from them and it's been used, but we don't know where it ends up. Where does it go? It's a question that you should ask the government, the Minister of Immigration and the department. What do they do with it? That's our concern too.

Specifically, we're saying that what your current bill allows—very broadly and very non-specifically—foreign law enforcement agencies to come in and ask us to find a match for them without any assurance of what it is for or any assurance that the privacy of individuals will be preserved and all of those things.

We all know that people are being charged. Specifically, human rights activists are considered criminals in many jurisdictions outside of Canada. How can you assure me that would not be used against them, that it would not be used in denying their human rights? That's our concern and that's something the government should address.

I also want to bring this point back to you. We're not only concerned about the impact on women. We are concerned about the legislation with regard to these oppressed communities, these people who are fighting for democracy and human rights.

The Chair: Monsieur Guimond.

[Translation]

Mr. Michel Guimond (Beauport—Montmorency—Orléans, BQ): Madam Chair, I'd like to make a quick comment.

Contrary to Mr. Ramsay who questioned the legitimacy or the credibility of the group in front of us, I for one would rather think that their committee represents a coalition of committees dedicated to the defence of women. Therefore, I don't need to ask whether their position is consistent with the views of my sister, my cousin or my aunt. These witnesses wish to submit a brief on Bill C-3 and we have to accept them as they are and to listen to them.

I appreciated your criticizing the government for not doing enough in terms of preventing violence in general, as well as what you said about the major demands formulated by women's groups, particularly last year during their big national march throughout Canada. I welcome your comments on that.

You envision the problem much more broadly than the bill does. You might want to submit such broader demands in another forum. I think your presentation deals specifically with these three aspects.

On the other hand, you unequivocally answered Mr. Ramsay's question when you urged us forcefully to withdraw Bill C-3.

Those were my only comments, Madam Chair.

[English]

The Chair: Thank you.

Mr. Mancini, five minutes.

Mr. Peter Mancini: Thank you, Madam Chair.

Thank you for the presentation. Some interesting points were raised, and I have a number of questions, but perhaps I can summarize them best by asking this.

At the end of the day, if we were to take the money and other moneys that you've been critical of the government for putting into the establishment of the data bank and solve some of the things you've talked about, like systemic discrimination, which is perhaps victimization of women by what you say are police agencies, would you still be opposed to the establishment of the DNA data bank as an investigative tool to gather evidence?

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I understand what you're saying when you say the police.... I'm not necessarily agreeing with all you're saying, but I understand what you're saying. If those problems were solved wouldn't this then be a piece of information that the police could use to ensure that criminals were brought to justice?

Ms. Amy Go: I don't think so, because I think what you're agreeing to is that we have a structural problem. The structural problem rests with the whole system, and because of that we cannot trust that establishing a DNA data bank can be outside that system of structural problems around the potential misuse of data and the structural problems that certain communities are already facing.

You are going to have a huge proportion of your data on a certain number of communities. How can you justify to me that these communities will be responsible or should be seen or deemed as responsible for the crimes that are committed out there? So because of all these structural problems, the establishment of the data bank is—

Mr. Peter Mancini: I don't mean to interrupt, and I may be wrong here, but my understanding is that the DNA information will be registered—and believe me, I have problems with this bill, okay?—upon conviction, not upon arrest, and it will not be randomly taken. The information in the data bank would in fact be samples from people who have committed crimes.

Now, you're saying there's an over-representation because of systemic problems in the system. But I come back to my question to you, then. If we can get around those systemic problems, is it not a good investigative tool?

Ms. Fiona Miller: I think that's a nice theoretical question, but I don't think anybody else in this room is interested in it. I would like to put the question back to you. If you think there is any merit in some of our arguments—and I think there is—first of all, since we've been raising these arguments for three years, why haven't they been investigated?

And I don't mean having the Solicitor General's office do this work and I don't mean having the justice ministry doing this work. I mean having some independent feminist research to see what's actually happening to women, both those inside and those avoiding the criminal justice system. Why haven't you paid attention to this? And if you see some merit in our arguments, what are you going to do in this bill to try to address these very systemic problems?

I am amazed that a member of Parliament would stand there and say that there is a problem with a group coming here and speaking only about women. I find it astonishing that you would think that is improper. We are speaking about women and we are speaking about oppressed communities.

There's nothing wrong with trying to address the specific aspects of the bill, which has been justified to a very considerable extent around sexual assault. So what are you going to do around inequitable banking? What are you going to do about further research interests? What are you going to do about infringing on people's freedom in this way? What are you going to do about the fact the police system, as we see it, isn't working well and the fact that this technological phenomenon is not going to solve that?

Mr. Peter Mancini: First of all, I hope you're not saying that I'm critical of any women's group.

Ms. Fiona Miller: No.

Mr. Peter Mancini: But let me tell you.... I'm sure you know this. I don't want to get into an argument here. You know that we can file minority reports. You know that I, as a member of a minority party, can say perhaps we shouldn't keep.... I tend to agree with you at this point that any samples should be destroyed upon acquittal. You may be interested to find out—and this causes me real concern—that I'm not sure they can be destroyed. That's something we have to examine. That's one of the things this committee will be doing. There are a number of things that I can do and that other members on this committee can do.

But all of those things can't be addressed in this piece of legislation, can they? What you're talking about is a tremendously radical overhaul of the criminal justice system. Can I ask you, and maybe it can't be done, to confine this question to this piece of legislation? From your perspective, is there no merit at all in this legislation? I guess there's not.

Ms. Amy Go: We just fundamentally in principle cannot support this kind of legislation. We have raised our specific concerns around the legislation that highlight to us why we can't support it, but honestly, because of these fairly entrenched problems—

Mr. Peter Mancini: Just one more question. I know I'm going over my time limit.

The Chair: Go ahead.

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Mr. Peter Mancini: As a criminal lawyer who has practised—and I'm open to your answer on this—is it not easier for a victim of sexual assault to say conclusively, to take away from the perpetrator of the crime the argument that he wasn't there and to save that victim the grilling that she will get in court when he says “No, I wasn't there; you prove I was there”? Is it not helping her to have a piece of evidence that says we've taken that away from you, we've taken that argument, so the defence counsel can no longer attack the credibility of that female witness on the stand on the issue of whether he was there?

I know what you're saying to me, that she's the best person to be able to identify him, but this will help her credibility, help avoid that attack. Isn't that beneficial to the victim?

Ms. Amy Go: I am sorry, I'm not a criminal lawyer, but in that situation where in the absence of any kind of bodily substance as evidence, it usually ends up with a case of consent, whether the woman has consented to the act. We have seen many of those cases.

Mr. Peter Mancini: I understand, and I don't mean to.... But the defence will be both. The defence will be, first of all, “I wasn't there, so prove I was” and second, “Okay, now you've proved I was—

Ms. Amy Go: But what we're suggesting is—

The Chair: Please let him finish. He does have a point, and he's experienced in the law.

Mr. Peter Mancini: What I'm saying is, instead of attacking the victim on two fronts—one is, prove I was there, and secondly, prove you didn't consent—this evidence will allow the victim to say “I don't have to prove you were there, the evidence says so”. It doesn't solve the problem of the victim being attacked on the stand, but it does provide one less attack.

Ms. Fiona Miller: I think what you're talking about is if there is a concern about him not being there. What we're saying is those are cases of stranger assault, those are cases where the woman...not stranger assault, but, you know, those are the sorts of rare and exceptional cases where that is really in contest. I mean, date rapes are cases where it's known.... He might claim not to be there, but the problem is that then you're switching the issue to consent, and we're saying those are less winnable.

If they're really arguing about not being there, that is a completely different kind of grilling that a woman is being subjected to from a grilling over consent, which you know is the greater burden for women.

Women aren't avoiding going to court in sexual assault cases because they don't want to be grilled over why they were there. Women aren't taking their cases to courts because they can't face being grilled over their past sexual practices, over their confidential case file reports, and over whether or not they said no. That is the issue in sexual assault, not the burden for a woman or of any victim in any case—this has nothing to do with sexual assault—trying to say “Yes, the crime was committed”, which is a different issue.

The particular burden for women in sexual assault is the issue around consent. We think this emphasizes again that the issue is identity, and those cases are much more winnable than the cases of consent. So you're going to see that switch. Maybe we're wrong, but prove that's not happening, because we believe it is happening.

The Chair: Mr. MacKay.

Mr. Peter MacKay: I guess the problem I have with much of what you're saying is that from your perspective all of the systemic problems are mutually exclusive of some of the practical problems that are addressed in this bill.

The examples you give are fine, and I have no difficulty at all with your perspective or where you're coming from or your right to be here. I think it should be known to you that this entire committee is very open, and I think I can speak for all the members, very open to what you're saying. However, you've been asked some very specific questions, and I'd like to ask you a few more, because the examples you've given are basically coming from the perspective that there are human frailties within the system that need to be addressed in almost the baby-with-the-bathwater approach, that there has to be a purging of the entire system in order for the changes you envision to take place.

This bill takes away much of the grey area that exists around violent crime, and sexual crime in particular. It's not only the ability to put a person there. Your premise or your philosophy is that the system is going to wrap its arms around this type of evidence so much that it's going to even further alienate women and their veracity and their ability to testify in court and be taken at face value for being truthful.

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I can understand why you would be concerned about that, but this type of evidence is also going to give the police, and more importantly the system, the ability to bring forth cases in which the victim can't speak at all or the victim chooses not to speak for some of the reasons you have put on the record. They feel there is prejudice or that they won't be listened to.

This type of evidence is going to allow, if it is used to the full extent that's available, some unsolved murders and sexual assault cases to be brought to justice. If for no other reason, I would ask you, do you not see that as good in and of itself? Somebody out there who committed a murder or a sexual assault could be brought to justice, and that may prevent another crime.

Ms. Amy Go: I guess we are going to come back to our original premise, right? What we're saying is that the problem faced by women in violence is that most of the violent crimes perpetrated against women, in terms of sexual crimes and all that, are done by people they know.

This bill, as you say, may assist with a small number of those unsolved murders and crimes that are perpetrated by strangers and all that. But we're saying that while you put your resources in dealing with that, you are ignoring, and may have a negative impact on, huge numbers of cases. You may expand the problems just tremendously. The impact is greater than the little, if any, that you may reap from this kind of legislation.

So again, our question to you is where do you put your priorities? Are you going to deal with this, put a little bit of money into this, and then ignore all the problems it may create or aggravate that are faced by women? Then communities like ours are going to have to bear the burden in dealing with those problems without government funding. So you choose to put money here, ignore our existing situation, take money away from us, and then make it worse for us. That's what we're saying.

Mr. Peter MacKay: Where is the research? On what figures are you basing your assumption that most, if not all, crimes are committed by perpetrators who know the victims?

Ms. Amy Go: I'm talking about most—

Mr. Peter MacKay: Obviously there are significant numbers, I would suggest, in which the perpetrator is not known to the victim.

Ms. Amy Go: That's what I'm saying. You should have the data in your hands in terms of the proportion of crimes, especially sexual crimes, committed against women. Who does that?

Ms. Fiona Miller: I think there's a fair amount of evidence that in sexual assaults a very high percentage of women, the majority of women, know their assailants. But those are also police data. Of course, as you know, there is a background of women who never get to the police, so that data never gets gathered so as to become official.

We are speaking for the communities of women who do work in sexual assault centres. These centres, as you may or may not know, have been at the forefront in defining the opposition to both forensics and the data bank because of what they face on a day-to-day basis in terms of the reality of male violence and sexual assault against women.

They're dealing with women who know their assailants and who are not particularly liked by the police. Police do not come when they're called. Prostitutes do not get the attention of police when they are assaulted. Poor women and single mothers who are in trouble with Children's Aid do not get the attention of the justice system. These are the women who are part of the vast underbelly of male violence against women, and neither the police nor the courts are interested in what goes on.

Mr. Peter MacKay: Aren't you making a vast assumption?

Ms. Fiona Miller: No, I'm not.

Mr. Peter MacKay: I have to take issue with that. You say the police are not interested. I have real problems hearing a person say that. I have real problems with that.

Ms. Fiona Miller: I'm sorry.

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Mr. Peter MacKay: I have worked with a lot of police officers. I've taken to heart much of what you've said, but you're condemning a system in which there are human frailties.

I happen to believe that the Canadian justice system, although not perfect, comparatively speaking, when you look around the world, is a very good system. It can be improved. That's what we're all here to try to do, but to say the police don't—

Ms. Fiona Miller: But I don't think you are.

Mr. Peter MacKay: —care or are not trying is a very broad, sweeping, damaging statement to carry around as a philosophy.

A voice: It's a sound philosophy.

Ms. Amy Go: I think you cannot deny the experience of women. Just talk to the women. We had the annual consultation with the justice department on issues based on women. These are front-line workers who work on a day-to-day basis with victims, women who have been assaulted, raped, and who have faced all kinds of abuse. These are the people whom the justice department has actually been hearing from for the last five years.

Just come one time and listen to these women and talk to them. Please don't deny or challenge women's experiences when they have to deal with the justice system.

Ms. Fiona Miller: Of course, your experience and my experience with the police is going to be reasonably favourable. I cross borders, and I don't get questioned; I'm not a young black man or a streetwalker. Obviously, our experience with the police is going to be quite different.

I'm not saying that they are wilfully malicious. I'm not saying that. They may be. Individuals certainly are. There's a racist cop in Toronto who has not been withdrawn from the force despite the fact that he was accused of killing a black man and he has made incredibly racist statements. So there are malicious members of the police, and I think we would be naive to deny that.

But we are saying there are systemic problems in the way that police deal with sexual assault. They put more energy into cases of stranger assault, such as a 15-year-old woman living in Etobicoke who was jogging, than they do in cases of women on the street in downtown Toronto who are women of colour, conceivably, who were dating that man.

You know that's true, and we are very concerned about exacerbating those problems. That's the major problem here.

I don't think it's good enough to say wouldn't this bill be great if things could be improved? Because things aren't being improved, and the priorities are on this.

The privacy commissioner did produce a report in 1992 on genetic testing and privacy. Nothing meaningful has been done on that. There's a proliferating use of genetic information without government initiatives to deal with this. That's just a tiny example.

The Chair: Ms. Miller, he's been here.

Ms. Fiona Miller: No, no. I'm just talking about that. I'm talking about in general.

The Chair: We heard his concerns in general.

In any event, Mr. MacKay, thanks. I want to go to Mr. DeVillers and then Ms. Bakopanos. Mr. DeVillers.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair.

Back to Mr. Ramsay's point about the witnesses and who they represent and don't represent, I can say for the record that the witnesses pretty fairly represent the women in my family. But I think that's not the issue we should be discussing here today. I think that's why we're in different parties, etc.

I heard the witnesses' concerns, and I share their priorities. I think personally that the priority should be into the longer-term issue, such as our socio-economic conditions, etc.

I was at a meeting yesterday with the Solicitor General, who confirmed that the clientele at Correctional Service Canada is overly represented by the marginalized members of our society, etc. But I have been doing research, and I've had symposiums on law and order issues in my riding, etc. It's a long-term, short-term situation.

I heard your answers to the specific questions. Being the fifth questioner, many of the questions I might have asked have already been asked on the specifics.

My question is a general one, and it's not on this particular bill. Does NAC see any role in the short term, given that we have long-term priorities and the solutions are long-term? We're not going to turn this around overnight. I know your objections to this bill, but is there any place for a similar sort of short-term measures to deal with the fact that, regardless that these are marginalized people and crimes are being committed, there are safety and security issues involved? How do you balance that long-term, short-term situation?

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Ms. Amy Go: Given that there is a tremendous underreporting of crimes against women, it's very difficult to answer a question like this, because we need to deal with that whole problem comprehensively and systemically. But if you want to target in terms of the violence against women and crimes against women, one of the major things is the underreporting. There's an unwillingness and also a fear among women to come forward.

If you want to reinstate that trust and have a real picture of what's going on out there in terms of real life experiences of women, you'll want to deal with that. Reinforce that trust and build that confidence in women toward the criminal justice system.

I don't think we can have a solution on the technology part. It's also an issue around how we can reinstate that by showing to women that we committed to dealing with their problems and addressing their immediate concerns, which would include real support to them, such as funding for women's groups, counselling sessions, shelters, and housing. Really provide the support and empower these women so they're confident enough to come and confront and deal with the system. Together, I think we may actually have a chance of impacting some of the long-term changes in the system.

If you ask me, yes, support those kinds of initiatives. Do more of that. At the same time, don't overlook the systemic problems. Put a priority on addressing those systemic and structural issues.

Ms. Fiona Miller: I do think you're posing a great dilemma that I imagine you must face. As members of Parliament, if this data bank goes through, there will be a number of unsolved murders that will be solved. I have no doubt about that, but I don't know how many it will be. I expect that probably it would not be as many as one would hope, but there will be some, and these will be of a very high profile.

These cases are very politically inviting. They get people re-elected. I do understand that.

The larger issues we're talking about are a concern. There's the fact that I think the whole assumption of a data bank is that recidivism is of such a nature and the justice system works in such a way that you have a sufficiently good map of the criminals in the country so that this will capture people.

I don't know about those assumptions. It's an issue of degree. As I say, I acknowledge that there will be some cases solved. I don't believe they will all be solved. I don't know what percentage it will be. But we're saying that we do think there are these major issues attached that are not of as high a profile, they're certainly not as sexy, and they're very, very difficult.

But as we analyse it, knowing what we know and what women face on a daily basis—we don't speak for them, but I think as we sit here we do represent women in front-line shelters—we cannot in good conscience accept this particular initiative.

Remember that we're not just talking about forensics—unfortunately, that one's through; this is a data bank, which is a whole other series of problems and assumptions about recidivism that I don't think are particularly well substantiated. So that's your political burden.

Mr. Paul DeVillers: Thank you.

The Chair: Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): It's really a comment, Madam Chair. Thanks very much.

I just want to assure the representatives of NAC that we do listen when we do go to those consultations. There has been gender analysis done across the board. Maybe it's not good enough, I'll agree with you. The women's caucus, in fact, on the government side has been pressing the government to assure that every piece of legislation is put through a gender analysis.

I also want to assure you that as far as the shelter funding goes, you'll be hearing soon from this government. It's something that the women's caucus has also pressed for, and we agree with that.

I want to take the point of view of my other colleague that this DNA bank is for the short term. I did listen to some of the concerns you have about it. But in the long term, they have to go hand in hand down the same road. They have to be on both sides. When we talk about trust—I'll end on that—it's a two-way street. Thank you.

The Chair: Mr. Ramsay, do you have a last question?

Mr. Jack Ramsay: Yes. I want to thank our witnesses. Your presentation has been very forceful, which is what we want. We bump heads on legislation here, and this is the place to do it. So I want to thank you for that.

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I also want to assure you that the statement you made here with regard to immigration officials taking DNA samples is going to be looked into. I'll be asking the minister if that's what's happening, and if it is, by what authority. So we'll check into that. I want to thank you for bringing that up.

Again, thank you for coming and for your forcefulness. I don't know whether the bill will be repealed or withdrawn. Nevertheless, thank you for being here.

The Chair: Okay, thank you.

The meeting is adjourned.