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.)): We are back to Bill C-3, an act respecting DNA identification and also a review of the provisions and operations of Bill C-104 from the first session of the 35th Parliament, both of which have to do with forensic DNA testing.

Our witnesses today, from the Canadian Association of Chiefs of Police, are Chief Brian Ford, the chair of the law amendments committee; Bryan McConnell, the executive director; Thomas Grue, from the office of the legal adviser, Edmonton Police Service; and Vincent Westwick, general counsel, executive services, Ottawa-Carleton Regional Police Service.

Chief, you know the drill. I'll ask you to begin and we'll have lots of questions.

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[Translation]

Chief Brian Ford (Chair, Law Amendments Committee, Canadian Association of Chiefs of Police): Thank you, Madam Chair. The Canadian Association of Chiefs of Police is pleased to appear before the committee today to present the views of Canada's police chiefs.

[English]

I'm here today as the chair of the law amendments committee. I'm pleased to have with me Brian McConnell, the executive director of the CACP; Staff Sergeant Tom Grue, a member of the Edmonton Police Service and legal adviser to the law amendments committee; and Mr. Vincent Westwick, general counsel to the Ottawa-Carleton Regional Police Service and legal adviser to the law amendments committee.

Our brief was prepared by Tom. I am pleased to advise you this is his first appearance before the committee on behalf of the CACP, so I would ask that you be kind to him.

Madam Chair, members of the committee, we support Bill C-3. This is important legislation and we encourage you to favourably recommend its passage to Parliament. Bill C-3 is unlike other criminal legislation because it is fundamentally preventative in nature. This makes Bill C-3 very special, and I will explain.

In police work we often arrive after the damage is done. You may recall that in our submission on Bill C-16, on Feeney, we argued that it falls to the police to pick up the pieces. Much of the frustration that is so significant a part of police work is derived from the fact that our officers rarely have the opportunity to prevent crime, to intervene to actually prevent the harm from happening.

The theory of prevention in Bill C-3 is that when a person actually knows that his or her DNA has been recorded, this person is unlikely to re-offend, knowing that the prospects of detection and conviction are so high. This deterrent is pure prevention.

So in passing this bill, Parliament should know it is preventing crime, not just giving police more tools to investigate.

That is the good news. The bad news is that in our opinion the bill seriously limits prevention in two ways. The bill restricts the taking of samples to after conviction. The bill also limits the application of the provisions retroactively. This is a serious mistake, and we caution you against leaving these provisions as narrowly drafted as they are in this bill.

You understand and respect that there are privacy concerns associated with the taking of a person's DNA. Currently the law allows for the taking of a person's fingerprints and picture when he or she is charged. Police are also allowed to take blood and breath samples before a person is charged. Why should the taking of DNA then be limited to only post-conviction? The issue is providing the opportunity for prevention in an efficient and timely manner consistent with the practice of taking fingerprints, which has existed for most of this century.

I also say that while this bill may prevent crime, it may also prevent injustice. Recent celebrated cases show the role of DNA in exonerating a person. This too is prevention, and I'm referring to the Milgaard and Morin cases. Most of our law deals with events after the fact. Rarely in lawmaking does there exist the opportunity to prevent, to effect a positive and bring about a good.

We encourage you to embrace prevention, not for the sake of police but rather for the sake of the communities across Canada you represent and for the sake of the police. Those communities continue to fear violent crime and have an expectation that somebody should be able to do something to prevent it. This bill has that preventative component, not in a heavy-handed way but using modern technology and a respect for privacy.

We also think the process for DNA ought to be expanded in its retroactivity. While there are provisions in the bill, they are both limited and convoluted.

The principle of the bill, outlined in clause 4, says in part:

4. It is recognized and declared that

(a) the protection of society and the administration of justice are well served by the early detection, arrest and conviction of offenders, which can be facilitated by the use of DNA profiles;

We believe that in order to meet that principle, the provision should be expanded.

I would now like to have Staff Sergeant Grue expand on some of the provisions we've outlined.

Staff Sergeant Thomas Grue (Barrister and Solicitor, Office of the Legal Adviser, Edmonton Police Service): Thank you, Chief Ford.

Madam Chair, I suppose we can do this in one of two ways. I can give you a summary of the entire brief and then take questions, or we can address specific issues, take questions on those issues and then move on to the next issue. If you have a preference, if you could let me know, I'd appreciate that.

The Chair: We would prefer that you complete your brief so the questions can be distributed to all of the participants.

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S/Sgt Thomas Grue: Thank you.

The first issue I'll deal with is the issue of the offence criteria that have been listed in the bill. The CACP is recommending that the offence criteria be expanded so that some other offences not presently listed in the bill be added to the legislation.

First of all, we are asking that subsection 348(1) of the Criminal Code, which is breaking and entering with intent or having committed an offence or breaking out, be included in the definition of a primary designated offence in circumstances where it's been established that this crime has been committed where the offender either intended or committed the offence of uttering threats or committed any form of assault or sexual assault. I'm speaking in terms of a break-in to a dwelling house as opposed to a commercial premise.

Secondly, it is also recommended that the offence of criminal harassment be included in the definition of a primary designated offence. The nature of this offence in the experience of police communities across the countries is such that the offender poses a significant risk to the individual he is stalking and is quite capable of harming the victim he has targeted. For this reason we believe this offence ought to be included in the list of primary designated offences.

Thirdly, it is our position that subsection 163(1) also be included in the definition of primary designated offence. Subsection 163(1) refers to making, selling, and possessing child pornography. In our view, people who are involved in this kind of pornography tend to be the kind of individuals who abuse children sexually, and in our view it would be appropriate to have this offence included in the definition of primary designated offence.

I just made an error here. We're asking that it be included in the definition of secondary designated offence.

Fourth, we're asking that those people who have been found not criminally responsible by virtue of mental disorder, which is found in section 672.34, ought to also be made subject of the testing provisions in Bill C-3. In our view, society has to be protected, notwithstanding the fact that these individuals might be found not guilty by virtue of this provision, 672.34. In our view, it's justifiable that they be included in the provisions that would allow them to be tested for their DNA.

With respect to proposed paragraph 487.051(1)(b), which gives a court the discretion to grant an authorization for the taking of a bodily sample if the court is satisfied that it is in the interests of the administration of justice to do so, it is our view that Parliament should provide clear guidelines to the courts when making such a determination as to whether or not it is in the best interest of the administration of justice to do so.

You will note in proposed subsection 487.051(3) that there are some guidelines attempted. In our view, these are too general. We would like a more specific, detailed set of guidelines that would restrict the discretion of the court in making a determination with respect to 487.051(1)(b).

When should samples be taken? This is a point of particular contention for the CACP. We would like to see the bill allow for the taking of samples at the time the person who has been arrested is being fingerprinted and photographed, rather than at the end of the process when the person has gone through the court system and has been convicted.

There are all sorts of administrative difficulties with requiring the police to wait until the end of the process as opposed to the beginning of the process, and in our view it would be far more administratively efficient for the police to be able to take the samples at the time the individual is arrested.

There are other questions that arise with respect to this section. For example, if the police had to wait until the end of the court process before samples could be taken, one of the issues is who's going to be taking those samples. Is it going to be the police? Is it going to be corrections officials? This is not known in the legislation, and this is one of the problems that could be overcome by allowing the samples to be taken at the beginning of the process.

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Proposed subsection 487.051(2) allows a court to decline making an order authorizing the taking of a bodily sample of a person convicted of a primary designated offence if the judge believes the impact on an offender's privacy rights is out of proportion to the public interest. In our view, this provision should not be included in the bill. It's up to Parliament, surely, to determine which offences are such that a person who is convicted of these offences has essentially given up his right to privacy in favour of the protection of society. We would ask that this provision be removed and that people not be given this option once they have been convicted of the offence in question.

Proposed paragraph 487.053(a) gives the prosecutors what appears to be an unfettered discretion to not ask, I suppose, for a sample to be taken from a convicted individual. We are concerned that this provision might be abused, even if unintentionally, by way of, for example, plea-bargaining and that sort of thing. We would ask that if this section is to remain in the bill it specifically be limited to circumstances where it has been determined that the offender's DNA profile has already been preserved in both the crime scene index and the convicted offender's index.

Proposed section 487.055 is another particularly difficult section for the CACP, insofar as it excludes a number of criminals who we believe ought to be automatically tested for a DNA sample. This section refers to the testing of those who are presently serving a sentence for certain crimes. Unfortunately, the crimes of manslaughter and murder are not included in this section, and we believe that's a serious error, especially in relation to those who may have committed more than one murder in the past.

In our view, people who commit, essentially, the ultimate crime have effectively given up their privacy rights and surely ought to be made subject to the DNA testing provisions in the bill. We would ask that this section be expanded to include manslaughter or murder as the category of offences for which a serving prisoner may be tested.

The summons provisions contained in proposed section 487.055 also present a difficulty. Presently, the section allows for a summons to be issued for a person who is on conditional release, and the summons may be served either personally or substitutionally by leaving it with any person found at the subject's last known address and who appears to be at least 16 years of age.

The difficulty with this section is that oftentimes, practically speaking, people who might be living at the last known address of the individual may not wish to assist the police in having the summons served and may deny that the person is living there, or the person, if he is living there, may not choose to answer the door. This is a very practical issue.

In our view, we would like the warrant provision contained in proposed subsection 487.055(8) to be expanded to empower a justice of the peace to issue a warrant for persons who cannot conveniently be found and who cannot conveniently be substitutionally served. I guess that would be the addition to this subsection; that is, allow the justice of the peace to issue a warrant for those who cannot conveniently be substitutionally served.

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Proposed section 487.07 refers to the duty to inform a person who is about to be tested for a DNA sample. It requires that a peace officer must inform the person from whom the bodily sample is to be taken of the contents of the authorizing warrant and many other things that are stipulated in this proposed section.

We have a concern about this provision insofar as we know it will be litigated, in the sense that it will be argued by defence counsel that perhaps the wording of the warning was not sufficient and therefore the results of the sample or the profile ought not to be used in evidence and perhaps should not be forwarded to the commissioner to be put in the data bank. In essence, it opens up this provision to a very technical argument, which we believe is unnecessary. We would therefore recommend that this proposed section be expanded slightly to state clearly that the failure to provide the required information or the inadequacy of the information provided to an offender from whom a sample is about to be taken is no justification for the exclusion of that evidence arising from the specimen or the profile.

Proposed subsection 487.07(1) authorizes the transmission of most of the results of DNA analysis to the commissioner of the RCMP. We believe this is an excellent provision in this bill. We do have a slight recommendation to make, however, when it comes to proposed paragraph 487.071(1)(a), which requires that if a person who has voluntarily provided a sample is later convicted of the offence in relation to which the sample was given, the results of the DNA analysis cannot be transmitted to the commissioner without, again, the consent of that offender. In our view, if the person who has given a voluntary sample has been convicted of the offence in question, then the results of the DNA sample should be automatically sent to the commissioner and the data bank and should not require the additional consent of the convicted person to have that sample sent to the data bank.

Proposed subsection 487.071(2) permits that any portions of samples of bodily substances taken for DNA analysis and not used up during the forensic testing shall be transmitted to the RCMP commissioner. We strongly endorse this provision. However, the issue has arisen of what happens in the case where the sample has been entirely used up in the testing process.

What we would ask is that if the sample is used up in the testing process, an additional power be given to get another sample, perhaps, in order to send the actual bodily sample to the commissioner. This would give effect to clause 10 of the proposed DNA Identification Act, relating to the storage of bodily samples and possible future testing of samples. We're simply concerned that if the entire sample is used up in the DNA testing process there won't be anything to send to the commissioner. So we would ask for a provision that would allow for another test; to be able to obtain an actual sample to send to the data bank.

That is a summary of the brief. We are open to any questions you might have.

The Chair: Thank you.

Just before we begin the questioning, let me tell my colleagues and the witnesses who are here that we have visitors, a fourth-year criminology class from the University of Ottawa. We welcome them. I'm going to ask the colleagues and witnesses not to be too quick to run out of here when this is over. They may want to ask you some questions informally. This may be a good opportunity for them to do so.

You just have to buttonhole them, especially the politicians. They love to talk.

Mr. Ramsay.

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

I agree with much of what has been presented here about amending the bill, particularly the expansion of the categories in the retroactive taking of DNA. That's taking DNA from those who have been convicted of serious offences. At present the bill only allows for the taking of DNA samples from those who have been convicted and described as a dangerous offender as well as those who have had multiple sexual convictions—more than one, two or more. So in as much as we've entered this door, I'd see the wisdom of doing that.

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To what extent would you expand the categories under that particular section of the bill?

S/Sgt Thomas Grue: We are, as I indicated, looking at at least an expansion in relation to murder, first or second degree, as well as manslaughter.

Mr. Jack Ramsay: Would you be satisfied if it was expanded to that extent?

S/Sgt Thomas Grue: I think the policy behind this particular provision is to seek evidence possibly of the commission of prior offences for which the individuals who are presently serving sentences have never been found out or convicted. Clearly, the focus should be on those offences for which there is a high degree of recidivism or the kind of offence that is so serious to society that just by virtue of the seriousness of the offence it ought to be included in this testing process.

So I think clearly manslaughter and murder would have to be considered in the category of offence that's so serious it requires a testing.

The other kinds of offences you might want to look at in terms of expanding the category of offences for serving prisoners would be offences for which there is a high degree of recidivism.

I note that in the actual section, as it presently reads, you're looking at persons who have been convicted at least twice of a sexual offence and dangerous offenders. There may be other categories of offences where people should be looked at in terms of the horrendous numbers of times they've been found guilty of various offences.

For example, I'm thinking of breaking and entering, where you have many people committing fifty, sixty, seventy, eighty—hundreds of break and enters. I think this is a category of offence that could possibly be included in this provision, simply because it seems to be the kind of offence for which there is a high recidivism rate and also in terms of the potential for serious harm occurring during the commission of this sort of offence. For example, a person may intend to break into a dwelling house simply to steal something, but they come across the householder inside, not knowing they are there. A confrontation takes place and oftentimes a serious assault or worse can occur. I think if we're looking at expanding it beyond murder and manslaughter, offences such as breaking and entering into a dwelling house could also be considered.

Mr. Jack Ramsay: During your presentation you did not make representation to the committee of the expansion to any other category, so I would assume you haven't a list of categories you have in mind other than what you have just told us.

S/Sgt Thomas Grue: That's correct, yes.

Mr. Jack Ramsay: We heard from Inspector Bass of the RCMP this morning, and he has indicated that the technology in this area of gathering DNA evidence at the scenes of crimes is developing extremely rapidly and that more and more DNA evidence can be gathered at the scenes of crimes.

What I understood him to be saying is that this type of evidence, the identification of offenders, will be available at more and more scenes of crimes. However, if this particular section does not allow the taking of DNA samples from those who have been convicted in order to clear up unsolved cases, including the serious cases of murder, manslaughter, and sexual offences, it's going to be a hindrance rather than an asset in that particular area.

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We've heard an awful lot about the integrity of the system, of the bank itself. For instance, I think it was Mr. Phillips, the privacy commissioner, who was suggesting that samples not be kept, only the profile of the sample. Once the profile has been taken and banked, then the sample should be destroyed. What do you have to say about that?

I notice you're indicating that if the sample is used up in order to get the profile, then in order to submit the sample to the commissioner of the RCMP for retention, authorization should be provided for the taking of an additional sample. What would you say to Mr. Phillips' suggestion that you get rid of the sample as soon as you have the profile?

S/Sgt Thomas Grue: I think that would be a serious error. I think it would definitely weaken the legislation.

Mr. Jack Ramsay: Why do you say that?

S/Sgt Thomas Grue: I think the value of the sample is.... For example, if technology does increase in the future, which undoubtedly it will, it will allow more work to be done on samples that isn't available with our present technology. Once the sample is destroyed, of course, you can't use any future technology to analyse that. You have only the present profile, the work that may not be adequate enough for the purposes of the newer technology.

As far as privacy concerns go, I think there are plenty of provisions in the legislation that provide serious penalties for those who do not use the bodily substances and the DNA profiles the way they're intended to be used according to the legislation.

Mr. Jack Ramsay: Mr. Phillips used the term “functional creep”, where, as the data bank grows and as the technology develops, there will be pressure to use the bank for other purposes than this bill is providing for; there will be strong demand. He used the income tax system as an example, where there is strong pressure from different departments of government, including I suppose law enforcement agencies, to acquire evidence from the revenue department on income tax returns because it would be a benefit to that particular department.

What do you say to this whole idea of a growing demand to use the samples, not only the results of the examination of the samples but the samples themselves, for purposes other than is now provided for in this bill? Do you see any danger there in the face of a growing demand, perhaps, from law enforcement agencies or other departmental groups saying if they just had access to the data bank on a person it would facilitate their jobs and responsibilities? Do you see any validity in what the privacy commissioner presented to the committee with regard to this functional creep idea?

Chief Brian Ford: I'll take that. I think not. I think as a function of Parliament that would be in the parliamentary jurisdiction to prohibit. As legislation, it is clear that it would prohibit others from using that. There's adequate protection for that, so I don't see it as an issue or a problem.

With respect to the maintaining of the sample as opposed to just the profile, I think it also helps to have a sample in a case where there may be some dispute about the accuracy of the information, so that somebody else can cross match or test out the accuracy of that. If you don't have the sample and all you have is a profile, then you can't really counter balance. It can actually work to the protection of an individual to have that sample there, so a cross match can be done to make certain that this is the sample and that some mistake was not made. I think there is a valid reason to maintain it on those grounds.

As to other government departments using them, I don't see that as an issue or a problem.

Mr. Jack Ramsay: My final question on this round has to do with proposed subsection 487.051(2) of the bill, which is the exemption granted to the court, where the court can exempt the taking of a sample. That concerns me. The reason it does is because on the one hand authority is being granted under certain circumstances to take samples. Then there is an exemption provided to that very authority.

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As an example, we have had the will of Parliament misinterpreted by the courts on the conditional sentencing law under section 41. That's a bit of a problem. The courts are interpreting that law and using it in a manner that Parliament never intended. Without getting any deeper into that argument, I see this as another opportunity for the courts. Although this may be well intended and directed at specific, unique cases, it is an open book in terms of the court having the authority to exempt the taking of DNA samples that is authorized by the very bill itself.

How do you feel about that? I would like to see that struck out of there completely, but that's just my opinion. What do you folks feel about it?

Chief Brian Ford: I would have to agree with that. Our reason for agreeing is that having that provision in there leads to the possibility of equitability not being there across the country. One judge, for whatever reason, may decide the provision is there to take, but doesn't think it should be taken in a specific case, and there won't be consistency across the board with respect to offences that are delineated, whatever those offences are. So we agree that this provision shouldn't be there.

Mr. Jack Ramsay: Okay. Do you have any idea of the purpose of this particular subsection? I can't think of a rationale where it would be just and fair to the accused to use. We asked the minister when he was here and he did give us an example, but it was not to my satisfaction at least. Do you know of any specific, unique set of circumstances where it would be fair and just for this type of exemption to be used?

Mr. Bryan McConnell (Executive Director, Canadian Association of Chiefs of Police): When I first saw that it reminded me of a case I was involved in many years ago in Vancouver. A pound of heroin was not entered because its probative value was outweighed by its prejudicial effect. Having lived through that one, I cast my mind to examples on this. Normally, a peace officer is pretty good at finding examples. I couldn't find one. I couldn't come up with one that would explain to me what they were thinking of when they created this. I can't find a reason for that being there. I can find lots of reasons for it not being there.

Mr. Jack Ramsay: Did you have input into this bill? Did your association have input into the bill?

Mr. Bryan McConnell: We've had input along the way.

Mr. Jack Ramsay: Thank you, Madam Chair.

The Chair: Madame Alarie.

[Translation]

Ms. Hélène Alarie (Louis-Hébert, PQ): Good afternoon, gentlemen. My first question is about taking samples. In your remarks, Mr. Grue, you suggest that samples be taken at the time of arrest, when the fingerprinting is done and the battery of tests are performed, rather than at the end of the process, at the time of conviction.

What would then be done with the DNA profile of innocent people? Would it be destroyed rather than rendered inaccessible?

[English]

S/Sgt Thomas Grue: Yes, it would be destroyed entirely.

Mr. Vincent Westwick (Legal Adviser and Member, Law Amendments Committee, Canadian Association of Chiefs of Police): If I can follow up on that, there's another advantage to that as well, because if a person is charged with an offence and there is DNA taken at the time of arrest and the DNA of the person arrested and charged establishes it as being inconsistent with the DNA that is found at the crime scene, then the charge is over. It cuts both ways; it cuts in favour of the accused and it cuts against the accused. It has a component to it that would prevent injustices, that would prevent the Guy Paul Morins and Milgaards and that sort of thing. The technology can be used not simply for enforcement purposes but for just purposes. It very much has positive and preventative components to it.

[Translation]

Ms. Hélène Alarie: So it is not a matter of technical efficiency? It is rather for the purposes of investigation favouring innocent people. Is that what you are saying?

[English]

Mr. Vincent Westwick: Yes, very much so.

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[Translation]

Ms. Hélène Alarie: I come now to my final question. Who will take the samples? The Bloc has put forward a motion suggesting that samples be taken by health care professionals with specific training in this area. You mentioned the possibility of having officers. Do you have an opinion on this question?

[English]

Chief Brian Ford: We think the police officers can take it if they're properly trained to take it. It's a fairly simple process. We don't have a problem with a police officer who has been appropriately trained taking the sample. But then again, if the drafters of the bill dictated that a health care official should do it, we wouldn't have a problem with that either. We still feel, though, that a police officer or a person working for a police service could take it.

Mr. Vincent Westwick: If I may add to that, the other component—and this issue arose as well with the DNA warrants, as to who should be taking it—is that there's a significant cost aspect to it as well. If a decision is made by Parliament that health care people are going to be involved, is that cost going to be foisted on the individual and local police services? That would be a significant burden, and it would also have significant impacts on efficiency, because when these samples are being taken, you're looking at timing and the availability of these people. Would police departments be required to hire health care professionals for that purpose alone? If so, that would be a significant cost, particularly—maybe larger municipalities might be able to afford it—in smaller and rural locales, where it could present a significant barrier.

[Translation]

Ms. Hélène Alarie: The fact remains that this is not at all the same thing as putting your thumb on the ink pad in the case of finger printing or taking a breathalyser test. Given all the considerations surrounding people's right to the best possible health care protection, and privacy protection, I think this is a completely different type of test.

I have no other questions. Thank you very much.

[English]

The Chair: Thank you.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you, Madam Chair, and thank you, gentlemen, for the presentation.

I have a number of questions for you. First of all, you've indicated to my colleague that if the sample is taken at the time of arrest and the individual is not guilty, is innocent, the sample should then be destroyed. Clause 9 of the bill indicates that they don't use the word “destroyed”, and I have a problem with that. They say any information “shall be rendered inaccessible”. Let me move on to that and say that in the event a person is acquitted, should the substance of the information be destroyed as well?

S/Sgt Thomas Grue: Yes. If the person is acquitted that seems fair to us.

Mr. Peter Mancini: I have a question about the taking of the sample at the time of arrest. You've indicated that you take fingerprints and breath samples and what have you, but surely—and we've talked here about technology—what we can find out from DNA about an individual is far more than what we can find out if we take fingerprints or any other type of identification and evidence from the scene of a crime.

You have argued in favour of retaining the sample. We know the technology is moving at such a rapid pace that we can always go back to that substance to test for more things.

My concern is exactly that. We can move into an area where information about genetic patterns will be available because the technology moves ahead so quickly. Wouldn't it protect privacy more to say that as the technology advances, if we require more samples we'll take them at that point in time? What's the problem with that, with applying to the courts down the road to take more samples if we need them for the technology?

Chief Brian Ford: Is that question directed to the fact that we wanted to save the sample as opposed to just a profile?

Mr. Peter Mancini: Yes.

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Chief Brian Ford: You may not be able to take those samples, and it is a possibility to take further samples down the road, but it may also not be a possibility. You would have to have a legitimate reason for taking it. You would have to have a warrant for taking that. You would have to go through a significant process to do it over again. We also believe having the sample there does allow for cross-checking and cross-matching to make sure it's a valid sample and the sample is accurate and correct.

About any further genetic profiling of an individual as a result of samples that are on file, I don't see that as a problem, by virtue of the fact that there's a limitation on what can be done with the information that is stored there, and that limitation is designated in the bill. Parliament has protected that. If they were to loosen that, for whatever the reason, then Parliament would have to loosen that, and that would be in...whatever. I can't predict the future, but if Parliament has seen clearly that it doesn't want to do that at this point and it wouldn't allow that to happen, then I think it would be in the best interests of a person's right for that not to happen, and it ought not to happen at all. But we still think there is a need for that sample to be there for future cross-referencing.

Mr. Bryan McConnell: But I think the protection of privacy can be attended to by this bill. The protection of our fellow citizens depends very much on this bill coming out in the appropriate format, containing the appropriate provisions.

Mr. Peter Mancini: Let me pursue that just a little further, then, because as I read the bill it says the use to which the samples can be put to a large extent is at the discretion of the commissioner. He or she can decide who gets them and who sees them. Should we look at increasing the penalty for anybody who breaches confidentiality in the bill and tightening up the circumstances under which the commissioner can make those samples available?

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): It's only for the purpose of preserving samples that the discretion is allowed.

Mr. Vincent Westwick: The only comment I would make to that is that the police are always criticized for coming before this committee and arguing for greater penalties. That would be the only reason why we wouldn't want to do it in this case. But if you would insist, I'm not sure you would hear the police community arguing against it.

Mr. Peter Mancini: It's a strange thing for me to be joining with you in that argument.

Chief Brian Ford: There are provisions in the wire-tap legislation that provide for penalties for people misusing the provisions of the wire-tap legislation. I don't see this as anything different.

Mr. Peter Mancini: I just want to be clear on this. I may be wrong, but as I look at clause 7 here:

7. Access to information contained in the DNA data bank may be granted to

(a) any person or class of persons that the Commissioner considers appropriate for the purposes

Mr. Nick Discepola: You're confusing the issue of profile access, which your first question was also about, and you're confusing the storage of and access to the samples. They are two different sets of legislation. The samples are at subclause 10(4).

Mr. Peter Mancini: Okay. Thank you.

The Chair: Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): Your proposal is that you believe there is considerable merit in the concept of allowing police officers to collect a bodily sample at the time of arrest, basically. Doesn't that simply give you another fishing licence?

Chief Brian Ford: I'm not a fisherman, so I'll have to get you to clarify that.

Mr. John McKay: Well, a hunting licence. In some respects it's an encouragement to round people up to get some samples and see whether it's going to fly.

Chief Brian Ford: No, I don't see that in there at all. As a matter of fact, I see anything but that in the bill as it stands. If you're going to take a sample, you take it on arrest and charging of an individual, and we don't charge people unless we have reasonable and probable grounds. In many provinces that means you have to discuss that case with the crown attorney of a jurisdiction. So I don't see that as a fishing expedition kind of licence at all.

It's the same thing with fingerprints. We don't take anybody's fingerprints unless we've actually charged them and the charge is before the court. In many cases that's done with discussion with crown attorneys before the charge is laid. Our most serious offences are all discussed with a crown. In some provinces that's a requirement, as in B.C. In Ontario it's not necessarily a requirement, but with serious crimes in Ontario, most police forces have a discussion with the crown before they lay a charge. We don't take fingerprints before—

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Mr. John McKay: The scheme of this legislation proposes that the sample not be taken till conviction, and you want to move that process up to the point of arrest.

Chief Brian Ford: No. Arrest, but charge; at the time of charge.

Mr. John McKay: Sorry. At the time of charge presumably you would get information, you would run it into the computer, and at that point the information could be used for other purposes as well as the specific charge. Is that where we're going with this?

Mr. Bryan McConnell: You mean for previous offences?

Mr. John McKay: Unsolved crimes.

Mr. Bryan McConnell: Yes.

Mr. John McKay: So really we're on a point of philosophy, whether that in fact is an appropriate use of a DNA sample.

Mr. Brian Ford: We do that with fingerprints right now. Once we arrest somebody and charge them and take their fingerprints, we search those prints through an electronic database, the AFI system. As a matter of fact, a person was arrested for shoplifting here two or three days ago in Ottawa-Carleton and that person was wanted for a charge of two counts of murder in British Columbia. We charged the person with shoplifting as the offence, took the fingerprints, ran them through the automated fingerprint identification system, and found out that person was wanted on a murder charge in B.C. Had we not done that, because the person had false identification and we had no other way of identifying that person, we would not have been able to identify him as the person wanted for murder in British Columbia.

Mr. Vincent Westwick: This question comes up quite often before the committee in connection with preventing abuses by the police. While it may be somewhat controversial, and I don't mean to open the door, the courts in Canada, up to and including the Supreme Court of Canada, and the civil courts, have shown no reluctance at all in bringing down a large hammer on police officers criminally, civilly, and in the context of criminal offences, for abuses and excesses of their authority. In fact, as you hear from time to time, the police are quite unhappy about that.

But I don't think Canadians ought to feel there is no check or balance on the exercise of law enforcement in Canada. To the contrary, a very vigorous check-and-balance system is in place and operating very actively. I think that should offer a great deal of comfort to Canadians, but also a great deal of comfort to Parliament, that these things are not being handled willy-nilly by the police. Checks and balances are in place.

S/Sgt Thomas Grue: Earlier on Mr. Westwick indicated that another advantage to being able to test at the time of charge is it may very well exonerate the person who has been charged. So it also possibly operates in favour of the person who has been accused of a crime.

Mr. John McKay: One final question, unrelated to this. It's about foreign samples; samples obtained from foreign sources. Are the standards of collection and analysis of samples of equivalent quality across the world?

Chief Brian Ford: I think we would have to let the laboratory people answer that question. I don't have the expertise to answer that question. I don't think anybody here does.

The Chair: Mr. Grue, you talked about extending this to break and enter and the committing of an assault, and you limited it to a dwelling home. If you're going to do it, why don't you...? I don't get that. Somebody could be raped while working late at work, or somebody could be working late in their office and somebody could break in and they could be assaulted. Is there any...?

S/Sgt Thomas Grue: I'm open to that. The way the brief reads is it does not limit it to dwelling houses. I just raised that as an issue because that's where most of these sorts of crimes are committed, if there's an assault or a sexual assault. But it doesn't have to be limited to there.

The Chair: Do you know how many unsolved murders and sexual assaults there are right now in your jurisdiction?

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S/Sgt Thomas Grue: In my jurisdiction? I don't know. There are many. I would say there are very many.

The Chair: Do you know how many there are in your jurisdiction, Chief Ford?

Chief Brian Ford: Three from last year. I'd have to go back and take a look, but I think for sexual assaults we're in the neighbourhood of a 75% to 80% clearance rate. So there is a 20%...I'm trying to think of the number of sexual assaults there were last year. I couldn't tell you. Probably a couple of hundred.

The Chair: And without talking about specific files, would DNA evidence be available?

Chief Brian Ford: In some of those cases.

The Chair: And how many of those victims were female?

Chief Brian Ford: The vast majority in the sexual assault cases, if not 99.9%. In murder cases, of the three I think two are female.

The Chair: Interesting.

Do you have more questions, Mr. Ramsay? Go ahead.

We're getting along very well this term, but it could blow up at any minute.

Some hon. members: Oh, oh!

Mr. Jack Ramsay: I want to touch on the area that I think the drafters of the legislation are concerned about—a serious, successful constitutional challenge. It has to do with the intrusiveness.

We've heard from a lawyer who had constitutional experience, charter experience. First of all, he thought the retroactive obtaining of DNA samples—that's for people who have been convicted and are still in custody or on parole—would be successfully challenged because it would be self-incriminating. Also, he thought it would be challenged on the basis of the intrusive nature of it as a result of the Supreme Court of Canada's decision on that very question of the intrusive nature, a person's privacy, and the privacy protection granted by the charter.

Here's my question for you, and you can address both these areas. I've always thought—and it was alluded to by Inspector Bass this morning—that the intrusive nature of fingerprinting in terms of physical handling and the time duration would be a lot more extensive than taking two seconds to get a finger pricked and taking blood from it or taking a swab from the mouth or plucking a hair sample.

In addition to that, there seems to be evidence to indicate that the intrusive nature of obtaining DNA samples is going to be reduced dramatically. We hear of places like New Zealand, where they now have the technology to get the DNA sample from practically the same process as a fingerprint process.

Do you have any comments in these areas that might be helpful to the committee?

Chief Brian Ford: I don't think it's any more intrusive than a fingerprint, because you can use a certain amount of force to take a fingerprint if somebody is reluctant to give their prints. Quite frankly, you can use a considerable amount of force.

As to the possibility of a constitutional challenge, I suppose any law that is developed by Parliament and put into play in society is open to constitutional challenges. Any law that's passed, I guess, could be open to constitutional challenges. Whether or not it'll be successful is something that I think the courts would have to decide.

Mr. Jack Ramsay: Okay. And what about the whole question of privacy?

Chief Brian Ford: It's no more an invasion of a person's privacy to take a DNA sample than it is to take fingerprints, and we do take fingerprints now. It's just another form of fingerprinting. That's all it is. It happens to be a form of fingerprinting that allows us to, on the one hand, more accurately determine whether the individual is or is not the person we're looking for. In the case of Milgaard and Morin it was extremely beneficial to accurately determine that they were not in fact the people who should have been charged with this.

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Had that kind of technology been available prior to it and had the people doing the investigation taken DNA samples at the time of charge and then matched those against them, in the case of Milgaard he wouldn't have spent so much time in prison. So there is a benefit from that side.

The other benefit is that small minute samples that are left a crime scene can be measured against an individual, whereas in the case of fingerprinting you have to have a readable print that has ten points on it before you can match it to a particular individual.

In terms of the likelihood of making a mistake with a fingerprint and DNA, the likelihood of making a mistake with a DNA sample comparison is non-existent apparently from the technology. I can't comment on the technology, but from what I understand from reading about it this is opposed to a fingerprint, where there can be some discrepancy.

The Chair: Unless there is contamination.

Chief Brian Ford: That's what I mean.

Mr. Jack Ramsay: You feel that this bill is charter safe then?

Chief Brian Ford: It's as charter safe as any bill Parliament passes, yes.

Mr. Jack Ramsay: What does that say?

An hon. member: Not much.

Mr. Jack Ramsay: Have you obtained a legal opinion on the charter aspect of it?

S/Sgt Thomas Grue: If I could just add to that, the fingerprinting issue has already been challenged, many years ago. It's been held to be constitutional. We have a fingerprint bank. Nobody has challenged that. Nobody has struck down the authority for the police to maintain a fingerprint bank, and this isn't any different.

As far as the intrusiveness of this is concerned, we already test people. For example, for impaired drivers we take them to a hospital and take a blood sample from them. That's more intrusive than a little lancet on the finger. So I would suggest that it should be charter proof, but as the chief has indicated in these times you can attack virtually anything under the charter—but in our view it is charter proof.

Mr. Jack Ramsay: Thank you.

The Chair: Mr. Discepola.

Mr. Nick Discepola: I really shudder when I hear people say that it's just like fingerprinting. I have tremendous concerns when I hear that. I won't dwell on it. though.

You mention that you're able to take blood samples as well as fingerprint samples at the time of arrest?

The Chair: With a warrant.

Mr. Nick Discepola: So if you have the warrant application at this stage, why isn't that sufficient? Why do we have to take everybody at time of arrest or at time of being charged?

Chief Brian Ford: We're saying time of charge because time of arrest could be—

Mr. Nick Discepola: Why doesn't warrant legislation provide you enough flexibility to be able to take both samples that are deemed more important as opposed to taking everybody at the time of being charged? Why do you have to go that far?

Mr. Vincent Westwick: If you're going to have a bank, if the purpose of the bank is to provide that kind of database information, then you need as large an index as possible.

Mr. Nick Discepola: You could take everybody at birth if you wanted to. Where do you draw the line?

Mr. Vincent Westwick: I'm not suggesting that. Clearly it's a policy decision. The concern is the level of violent crime that exists, the level of unsolved violent crime, the level of concern that exists in communities about violent crime, and the opportunity of Parliament to put forward, in my respectful view, something that is preventative and not simply a big heavy-footed police officer stomping down on people, which is the way this bill would otherwise be described.

Mr. Nick Discepola: I would invite you to read the privacy commissioner's testimony, Mr. Westwick.

Mr. Vincent Westwick: I've disagreed with the privacy commissioner before.

Mr. Nick Discepola: You have disagreed with us before too.

Mr. Vincent Westwick: I have trouble with characterizing this as an enormous enhancement or aggrandizement of police powers. This is not an aggrandizement of police powers. In my view, the police officers are acting as agents, in this case of the justice system. It's not as though you're putting in an investigative tool.

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Charging is a judicial process; therefore, this is not something being done outside of the judicial system. This is not something being left to the discretion of police officers to exercise wherever they may feel it's appropriate. It's a process that is being brought to bear as part of the justice system, which is triggered by the laying of criminal information.

I would only repeat my comments that if there are abuses and those abuses are being detected, there ought to be a consequence for that. I don't think anybody at this table would suggest there ought not to be consequences for abusing that kind of power.

But this is very different from the kind of situation where the police come to you and say they need this investigative tool in order to get the job done. This is part of the justice system, and anything that is part of it once the charge is laid is in the hands of the crown prosecutor and under the discretion of the court.

Mr. Nick Discepola: We do have a presumption of innocence in our country, and I don't think we want to undermine that.

S/Sgt Thomas Grue: Certainly.

Mr. Nick Discepola: You mention, and startlingly so, that you want to keep the samples. My understanding of this legislation is you will never have access to the samples. You'll only be given the name of somebody who hits the crime scene index. You won't even be given the profiles. So why are you insisting on the samples being stored?

S/Sgt Thomas Grue: If we did say that, I'm not sure we meant to say that. We wouldn't be keeping them. We would be sending the profiles and the samples off to the data bank.

Mr. Nick Discepola: My understanding is you wouldn't even have access to the samples. The forensic analysis will be done, the DNA will be taken, and when you're doing your investigation you will only be told whether there was a hit and the name of the person.

S/Sgt Thomas Grue: Right.

Mr. Nick Discepola: So why are you recommending we have to keep the samples?

S/Sgt Thomas Grue: Do you mean the police services individually?

Mr. Nick Discepola: Right.

S/Sgt Thomas Grue: No, we wouldn't be keeping the samples.

Mr. Nick Discepola: Why are you recommending the samples be stored in any case? Why not just destroy them once the profile has been given, taken and stored in an electronic format?

S/Sgt Thomas Grue: If I understand the question, I think the issue is that future technology may be capable of testing a sample to a greater extent than was available at the time the sample was taken. So being able to have that sample in a data bank perhaps could lead to testing of the sample that was not amenable to a kind of testing that would have given rise to an adequate DNA profile at the time it was taken, or perhaps a DNA profile that is far greater in extent or quality could be developed in the future with better technology, as it arises.

Mr. Nick Discepola: Do we have expert testimony coming up on the validity of sampling and analysis? We do? Okay, I'll reserve my question for that.

Thank you.

The Chair: Thanks, Mr. Discepola.

Just on the first question Mr. Discepola asked, I think, Mr. Westwick, you started to answer it. Surely the issue is there should be some comment on C-104, which was the warrant provision we provided in the first session of the last Parliament. I think Mr. Discepola's question was essentially, “Are those sections working? Can't you collect DNA that way upon arrest with a warrant?”

S/Sgt Thomas Grue: The answer is yes, I think they're working. I don't have statistics available to me as to how many DNA warrants have been issued and, from those, how many convictions have been made. But you must remember as well that when you're seeking a warrant, there are additional things. You have to have reasonable grounds to believe that evidence will exist. It's not like a fingerprint that is being taken as a matter of course and then being measured against a data bank. As well, when C-104 was put in we didn't have a data bank. If there isn't anything to check the data bank against, there's no point in having a data bank, it would seem to me.

The Chair: There's one argument, though. The fact of the matter is you can get DNA in certain circumstances on arrest. That's available to you now. Now you'll be able to get it at a later point in the proceeding and, in certain circumstances, you'll be able to keep it. So you have a three-step process.

S/Sgt Thomas Grue: No, we can't get it on arrest now. We can get it with a judicial warrant.

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The Chair: That's what I'm saying to you. There's a way to get it on arrest, and that's with the warrant. It provides certain protections to the suspect. In other words, there's a judicial check on whether you have reasonable and probable grounds to take the blood. But it's there; you can do it.

Mr. Bryan McConnell: There have to be reasonable and probable grounds to lay that charge.

One whole group that would escape detection here would be the group that is charged and no sample is taken because they're not convicted yet. Then they disappear into the woods somewhere—the Ottawa person takes off to Vancouver; the person in Vancouver takes off to Chicoutimi. Those are people who likely will not return, knowing full well that if they return, are convicted, and have their sample taken, they may well be in for a much longer stay, courtesy of the taxpayer, than they would be otherwise.

The Chair: If they're lucky, because if they show up in Brian Ford's jurisdiction we're going to get them.

Mr. Bryan McConnell: That's right. I happened to be in Penticton when the two people were murdered in Summerland, which is just 10 miles away from Penticton.

I'd like to come back to this presumption of innocence that Mr. Discepola mentioned, because the police believe in that and support it tremendously. Often it's a well-placed presumption; sometimes it is not. If we have the samples upon charge, in those instances where it is an ill-placed presumption, crimes will be solved; victims will not be victimized. That's really why we need that section changed.

The Chair: Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Earlier we had a little bit of discussion about your recommendations to add to the list, and we talked about breaking and entering a dwelling house versus breaking and entering a business. You seemed to change your recommendation.

Certainly there has always been quite a distinct historical difference between a B and E of a dwelling house and a B and E of a business. One, of course, is that the maximum is life in jail for the consequences of a B and E of a dwelling house, whereas it's only 14 years for a business. The whole issue of the Feeney case turned on the fact that it was a dwelling house. We wouldn't have had the Feeney case if the guy was in a tire shop.

So there is a very clear distinction between those two B and Es, and I want to clarify what your recommendation was related to that.

S/Sgt Thomas Grue: The recommendation does not distinguish between dwelling house or commercial premises.

Mr. Paul Forseth: So you're simply saying that breaking and entering should be included.

S/Sgt Thomas Grue: Yes.

The Chair: If there's an assault or an intent to commit assault.

Mr. Paul Forseth: The other thing is, while we've been sitting here our chair has given a DNA sample.

The Chair: And I'm going to keep it. You're not nailing me with this.

Mr. Paul Forseth: I want to know what the current law is about following someone into a restaurant, they pick up a napkin or handkerchief—our chair has a bad cold—they leave sufficient DNA samples in the napkin, and then they leave it on the table and go. The policeman then comes over—he has a trail—and he's able to testify that he saw that individual and he kept his eyes on that napkin.

What is the law, then, about surreptitiously following an individual and collecting a sample that way? What is the law around that for you now, and does this do anything to help you in that regard?

S/Sgt. Thomas Grue: I think the law on that issue right now is that if the person is not in custody at the time they give that sort of sample, then you can use it.

For example, if you get to an accident scene and their blood is in the car or something like that, you can use that to do a DNA analysis. However, if they are in your custody and they blow their nose, you're not supposed to take that tissue with the DNA sample unless you get a warrant from a court to take it.

As far as whether or not this legislation would help in that regard, I don't think it would really.

Mr. Paul Forseth: So if you're following a suspect around—and there are often long surveillance cases—and really trying to figure out whether this person is a suspect or not, to match the DNA you already have from a crime scene you can follow an individual around and collect the DNA they leave on their coffee cup and then take that back and do some comparisons without the knowledge of the individual?

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S/Sgt Thomas Grue: Provided the coffee cup is not on private property. Obviously, you can't go onto private property to get the coffee cup, but if they leave it in a public place, then presumably you could do that, although there might be all sorts of evidentiary problems with trying to collect that kind of a sample that way.

Mr. Bryan McConnell: I think there was an individual named Nelvis in the news recently with that kind of a sample. The handkerchief one, by the way, came up in the Legere case in New Brunswick, and it has been well settled.

The Chair: Mr. DeVillers, and then Mr. Ramsay.

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

The suggestion has been made that the data bank not be kept by the commissioner of the RCMP but rather by an independent agency. I just wonder if you have any comment on that suggestion.

The Chair: A crown agency?

Chief Brian Ford: A private enterprise?

Mr. Paul DeVillers: Independent agencies set up with private auditors.

Chief Brian Ford: I have my own private views on that, but the CACP's position on that at this point in time is that as the RCMP now controls the data bank for fingerprints and they also have the labs for DNA analysis in this country, it would be the appropriate place to put it at this point in time. That would be until such time as the Government of Canada decided that perhaps there would be a separate national police service under a separate jurisdiction, i.e. the Solicitor General, as opposed to being under the control of the Royal Canadian Mounted Police. I suppose that's a more appropriate place for it to be at this point in time.

The Chair: Say, there's a can of worms.

Mr. Nick Discepola: I think you're fishing there.

Chief Brian Ford: I'm not fishing, I'm just throwing out a hook. I'm passing the puck.

Mr. Paul DeVillers: So you have no position? You believe it should be—

Chief Brian Ford: It should be controlled by the federal government, not by private enterprise. That's definitely our position.

The Chair: Nobody's suggesting that.

Chief Brian Ford: We don't see any problem with it being with the RCMP right now, but if it's another federal body, that's fine too.

Mr. Paul DeVillers: Okay

The Chair: Thanks. Mr. Ramsay.

Mr. Jack Ramsay: This has to do with the integrity of the bank. We heard concerns about the misuse of it, not only I suppose by the police officers themselves, but if the bank could be improperly and unlawfully entered by insurance companies and so on, there's that kind of a concern.

My comment is this. I have made it before in front of this committee. The ability to gather DNA is becoming so easy that anyone who wants to get a sample of your DNA can get it by the examples suggested by Mr. Forseth. In fact, we had a witness here who said you could get a DNA sample from a glass that someone drank from.

Is the concern being expressed about the integrity of the bank not really redundant at least in as much as it can be tapped into by outside agencies for purposes of insurance and so on? Are we not looking at something that will soon become redundant? If they want that, they can get it, and they don't have to tap into the RCMP bank to get it.

Mr. Nick Discepola: Insurance companies often ask you for a blood test before insuring you for certain amounts.

Mr. Jack Ramsay: Yes, but if I say no, I don't—

Mr. Nick Discepola: Then you don't get insured.

Mr. Jack Ramsay: I wouldn't get any insurance? That's against the charter of rights. I'd sue.

Mr. Nick Discepola: Take it up with your member of Parliament.

The Chair: I want to thank you gentlemen for an interesting afternoon. We have not had one boring, dull moment on this file; we're fascinated by it. Thank you all for your contribution.

The meeting is adjourned.