Mr. Chair, the motion I've introduced is further to the testimony we heard — as you'll remember — at the time of the summary of Bills C-95 and C-24, and to the consultations I've had with Montreal police representatives. It has four objectives. And I'll be introducing a minor amendment that I'm going to explain to you.
First, I was very surprised to learn that the existing definition of criminal organization — that is to say a group that is not randomly formed, of three persons or more, one of the members of which commits serious offences, punishable by a prison term of more than five years, resulting in a material benefit, especially a financial benefit — does not cover the phenomenon of drive-by shootings.
This morning, for example, the Montreal police will be holding a press conference. Six crimes like the one I've just described to you have been committed since the start of the year. I don't need to tell you that that's also true in Toronto and Vancouver. I think we have to amend the definition of criminal organization to include acts by members of street gangs and that we wouldn't be able to rely directly on material benefit.
That's why it is not my intention to reduce the scope of the definition of criminal organization. However, I believe we should include drive-by shootings in it. For example, there have been 120 victims of street gang confrontations in Montreal in the past 10 years. That was the first aspect.
The second aspect relates to Mr. Bélanger's remarks, that the warrants that police officers obtain for GPS systems, which are a device used to follow a car, must be harmonized. This isn't wire-tapping; you can't intercept communications. However, it makes it possible to follow a car's movements and to link individuals to each other. It's very useful for making demonstrations in court.
By way of a third point, I'd like to introduce a minor amendment. The idea is that there obviously are more specialized prosecutors. We're winning the battle against organized crime because Crown attorneys have agreed to specialize. That takes two, three or four years of work; you have to be aware of that.
I think there'd have to be specialized attorneys in connection with street gangs. They have to know their modus operandi, how the individuals who belong to street gangs operate. However, I won't be talking about money because I wouldn't want the government to feel bound. We could remove the reference to the $5 million fund. The government could just make a sufficient fund available to the attorneys general of the provinces, over five years, to help them train specialized Crown attorneys. I wouldn't refer to any amount in particular.
In addition, I've learned that the government made specific amounts of money available to the City of Toronto to train Crown attorneys. I wonder whether Montreal, Vancouver and other communities could benefit from that. It's not that we want to be “Montrealists”, but that's a reality.
For the rest, the fourth part of the motion is obviously that the government establish a data base, a Web site where all court decisions and evidence gathered in all street gang trials would be available to all stakeholders. I want to be clear on this, since I took the trouble to state it: all stakeholders, in my mind, are police officers, Crown attorneys and obviously the ministers concerned, but not necessarily defence counsel.
At the trial stage, the Stinchcombe decision will apply and everyone will obviously have access to the evidence. However, I think that the immediate stakeholders, that is to say the police, the public department and the Department of Justice should have access to a secure file.
That, Mr. Chair, is the gist of my motion, even though you're not listening to me, which obviously gives the impression that we're an old couple. I hope that the proposal to withdraw the $5 million fund will help make everyone more comfortable.
My purpose is to give police officers tools. I don't understand Mr. Comartin's reluctance. Is it because he has the impression that that would change sections 467.11 and 467.13? In any case, under section 467.12, it's not necessary to derive a financial benefit. That only appears in sections 467.11 and 467.13.
But how would we be committing an imprudent act by saying that criminal organizations, the characteristics of which we know — it doesn't have to be a randomly formed group; it has to consist of three persons who have committed offences punishable by a prison term of more than five years, and the group or one of its members has to derive a financial benefit — that have also committed offences without deriving a financial benefit are also included. How are we taking a risk if we say that, in addition to all the foregoing, people who, in addition to meeting these criteria, but who also commit offences without deriving a financial benefit, are included? I don't see how that limits the scope of the definition.
I remind you that drive-by shootings are the main way in which street gangs operate. I admit I don't understand the hesitation, but I'm ready to receive an amendment. If Mr. Comartin wants us to amend that, that's no problem for me.
Second, from what Sergeant Ouellette and the witnesses have told us, the judgments rendered in all Canadian jurisdictions don't circulate readily. It would be interesting to see to what extent the Bonin judgment rendered by the Court of Quebec, Criminal Division, is known to the attorneys of Saskatchewan, Alberta and Manitoba. The evidence used in the judgment, and everything that was filed, would be entered in a secure central registry, as Ms. Jennings said, for justice stakeholders. I don't see how that isn't an area that isn't solid.
Now if it is not the wish of committee members to vote on the motion, I am prepared to move it, and we can hear witnesses on the subject. That's not a problem for me, but I admit that I personally didn't think it was something that required us to hear witnesses. However, if that's the committee's wish, I'm prepared to move it and for us to send for witnesses.
Thank you very much, Mr. Chairman.
I apologize if there was a bit of a mix-up. I had this on my schedule for 10 o'clock; this actually works out better. I'm now subject to House duty. This is a function that I didn't have as House leader or whip. I was always impressing upon others the importance of House duty, and now I have it myself. So this will work out very well.
I'm glad to be joined here by two colleagues who are experts on this particular piece of legislation, and I'm glad to have them at the table with me.
It's a pleasure for me, Mr. Chairman, to appear before you today to discuss a bill that addresses concerns that we all share about how to make better use of DNA to assist law enforcement, a bill that has been supported at second reading, I'm pleased to say, by all parties within the House.
As members are aware, the last Parliament passed . As introduced, Bill C-13 included an expansion of the retroactive scheme to include persons convicted of a single murder and also of a single sexual offence committed at different times. There were some additions to the list of primary offences, including robbery and break and enter of a dwelling, and some additions to the secondary offence list, including criminal harassment and uttering threats.
was the first opportunity Parliament had to consider the DNA scheme since it had come into force in June 2000. It was always recognized that the DNA legislation, which was pioneering, would have to be revisited in light of experience with its provisions, judicial considerations of the legislation, and developments in the rapidly developing DNA science and technology. Indeed, the legislation itself required a parliamentary review within five years, and I will come back to that point in a minute.
Even though was never intended to replace the review, the hearings were quite extensive. Major amendments were made to the bill in committee that greatly extended the reach of the DNA databank provisions, including creating a new category of offences where judges would have no discretion and including all offences that are prosecuted by indictment and are punishable by five years under the Criminal Code as secondary designated offences.
The fact is, Mr. Chairman, most of is not in force. There are technical glitches that must be addressed before it comes into force to make its provisions more effective in carrying out Parliament's intention.
The previous government recognized the need to make changes and introduced in November 2005. Bill C-72 died on the order paper, and we have now introduced to make the changes proposed in Bill C-72, along with other technical improvements in the legislation that were identified by federal and provincial officials after Bill C-72 was introduced into the House.
is complicated in its drafting because some sections amend the former , so that when Bill C-13 is proclaimed, the new provisions will work better. I'm pleased to have the officials here with me who will be able to answer any questions you may have on how these two bills will work together.
To assist the committee, my department has prepared an unofficial consolidation to show how the Criminal Code DNA provisions will read if is passed and then is proclaimed, and I have provided copies to the clerk. There's also an excellent summary of the bill, including its background, which has been prepared, I understand, by the parliamentary information and research service.
Colleagues, as members know, DNA has had an immense impact on our criminal justice system. It has exonerated many people who were innocent but were convicted on the basis of witness testimony and circumstantial evidence. It has led to thousands of convictions where accused, who might have been able to go undetected in the past, are identified through DNA matches to known persons, thereby giving police the lead they need.
Moreover, cases in the past that might have gone to trial with the defence casting doubt on the accuracy of the victims' and other witnesses' recollections of events now are resolved by a guilty plea because the defence knows it cannot explain away the DNA evidence or cast doubt on the reliability of the science.
In the late eighties and early nineties, prosecutors began to use DNA, but it was only in 1995 that the Criminal Code first allowed for a judge to compel a person to provide a sample for DNA analysis, a provision that was unanimously upheld as constitutional by the Supreme Court of Canada.
It was in 1998 that Parliament passed the legislation necessary to take DNA samples from convicted offenders and to create the national DNA data bank to compare those samples with DNA samples found at crime scenes. I understand that members of the committee were able to tour the national DNA data bank yesterday. I'm sure you were impressed by the facility, and especially by the dedication and professionalism of the staff. It is certainly a most cost-effective institution, of which all Canadians can justly be proud.
The effectiveness of the data bank depends on the number of profiles in the convicted offenders index and the number in the crime scene index. The passage of this bill, and the subsequent proclamation of Bill C-13, will increase the number of samples in the convicted offenders index in a number of ways.
Firstly, it will create a new category of 16 extremely serious offences for which a judge will have no discretion not to make the data bank order. There are cases where persons convicted of these offences have not been required to provide a DNA sample for analysis.
Secondly, this bill will move some offences—most importantly, break and enter into a dwelling place and all child pornography offences—from the secondary designated offence list to the primary designated offence list, so that there will be a far greater likelihood that an order will be made.
Thirdly, this bill will add many more offences to the secondary designated offence list, including offences under the Criminal Code and under the Controlled Drugs and Substances Act that are prosecuted by indictment and that have a maximum sentence of five years or more.
Fourthly, it will provide many procedural changes to make it more likely that an order will be executed, for example, by allowing a judge to set a time and place for a person to appear to provide a DNA sample rather than having to do it at the time of sentencing, and providing for a warrant to be issued for the person's arrest if the person fails to show.
Fifthly, persons who are found not criminally responsible on account of mental disorder will be brought within the scheme.
Sixthly, a new procedure will allow a judge to set a date for a hearing to consider whether to make a DNA order within 90 days of imposing a sentence. This is intended for the situations that inevitably occur in our busy courts, where a trial is concluded and a sentence is imposed but nobody remembered that a DNA order could be made in the particular case.
We cannot be certain how many more samples from convicted offenders will be submitted to the data bank for analysis and for uploading to the convicted offenders lists as a result of these changes. Much depends on the courts, prosecutors, and police. We trust they will use the new provisions to the fullest extent.
It seems certain, however, that these changes will at least double, and could triple, the number of samples coming in. I believe this legislation will have a similar effect on the number of samples being uploaded to the crime scene index. Certainly, the changes to the definitions of primary and secondary designated offences mean that samples from many more crimes could be uploaded, because the DNA data bank only uploads samples from those crime scenes involving a designated offence. For example, it will be possible, when the legislation comes into force, to upload samples from drug offences.
However, as I believe members are aware, the forensic DNA laboratories across Canada are struggling to meet the workload they now have. The advances in DNA technology mean that scientists can now extract DNA from small samples, such as the saliva that moistened glue on an envelope. Since police do not know which items found at a crime scene may have DNA, they may want dozens of items analyzed—chewing gum, beer cans, cigarette butts, clothing and sheets—in the hope of finding the one that has the offender's DNA.
Crime scene analysis is a labour-intensive process. Every step of the process has to be meticulously documented because the successful prosecution of an offence based on DNA evidence will require the police and the lab to show they did not mix up the samples or allow contamination of the sample. This is not work that can be done by untrained personnel or that lends itself to robotics. Accordingly, there is an almost insatiable demand by the police for DNA analysis and there is a limited supply of persons competent to do the crime scene analysis.
In conclusion, Mr. Chair, I would make two observations.
First, I believe it is urgent that Parliament pass so that we can begin to feel its benefits. Certainly it may be possible that more extensive changes, then, are proposed in either or Bill C-18 and can be made, particularly in light of the endorsement of the DNA legislation by the Supreme Court of Canada in the Rodgers case last April. However, such changes should be made after a full hearing of all the stakeholders and should not be grafted onto Bill C-18.
My second observation, Mr. Chairman, deals with how we might consider major changes to the DNA system. As members know, Parliament was supposed to have begun the parliamentary review no later than June 30, 2005. We are now more than 18 months past that date. was intended to address the problems in the system identified in the first two years of the operation of the DNA data bank. It followed consultations undertaken in 2002, and at that time the consultation paper specifically stated that the consultations led by the Department of Justice in cooperation with the Department of the Solicitor General of Canada are part of the government's ongoing commitment to review and refine existing laws in response to evolving experience and stakeholder feedback. They are intended to support a parliamentary review scheduled for June 2005.
Many respondents to that consultation made it clear they wanted the whole system rethought and looked forward to the parliamentary review. The Canadian Association of Police Boards, for example, before answering the 12 questions in the consultation paper, stated:
The CAPB believes that at this juncture, the core issue is whether the incremental approach, such as is signalled in the consultation paper, remains appropriate, or whether legislators should instead be considering a much more comprehensive and wide scale use of DNA testing and collection.
How can we best advance the consideration of a comprehensive review that the CAPB and many others have been waiting for? Officials of the Department of Justice, the Department of Public Safety, the RCMP, and the national DNA data bank have all been ready for the beginning of the hearings since 2005. I understand they had prepared a discussion paper on the issues and a series of questions. Of course, Parliament was dissolved before the committee was able to conduct the review and the paper prepared by the officials has languished ever since. The paper could be quickly updated and form the basis of a consultation by the Department of Justice and the Department of Public Safety. The consultation could probably be completed by September, and the results of the consultation would form the basis for recommendations by government on how to change the legislation. Hearings on those recommendations would allow for a focused review on the use of DNA in the criminal justice system to begin late this year or early in 2008.
As always, I would appreciate the views of the committee on whether this would be an appropriate way to proceed.
Mr. Chairman, thank you very much for the opportunity to appear again before this committee.
Now, there are two areas. One is the issue of the scope of judicial discretion with respect to making an order, and the second is the issue of international sharing.
If I look at the issue of international sharing, we would like to know what would actually be shared internationally and with which countries. Is there a limit to the countries with which Canada would share information from the DNA bank? Is there an actual signed agreement or covenant, or what have you, with countries with whom we would share DNA information?
And if there's a violation...? For instance, we have our scope, so that if this bill goes through—amended or not amended—there will be a clear framework or clear conditions under which DNA can be collected, under which the information can be used, and under which the information would be destroyed, for instance. First, would any international sharing be subject to exactly the same conditions under which DNA in Canada can be used or must be destroyed, etc.? If so, and there are violations of Canadian law the other country agreed to respect, what recourse would Canada have?
That's one series of questions, and you may have to use other time to respond.
On the question of judicial discretion, we already know that visible minorities and aboriginals are disproportionately represented in our correctional system. Longitudinal studies have shown very clearly that there's an element of racial profiling. I can remember very clearly a study done in Quebec regarding a certain number of offences—assault, assault causing bodily harm, etc.—in which researchers used actual police files. They were able to determine that, all factors being equal, if you were black and male and between the ages of 18 to 35, your chances of being charged were twice to three times—depending on the so-called infraction—those of a white with the same circumstances, or with everything else being the same. Therefore, we know from studies that visible minorities and aboriginals are disproportionately represented, and it's not because they're more criminalized, but because there is a certain amount of systemic discrimination that exists. The police admit it themselves—the Montreal police do—and they've instituted programs to try to deal with it.
So by removing judicial discretion, are you not worried that the data bank will then reflect the same kind of systemic discrimination?
It may be useful to simply go back to the fact that the power to share DNA profiles internationally, through the national DNA data bank, is now in the legislation of the DNA Identification Act. It provides that the data bank can, on receiving a request from a foreign country, search the national DNA data bank for any profile that's submitted to it and then report on whether or not there is a match in the DNA data bank, and any other information, except the profile itself.
One of the amendments that we're hoping will improve is the ability to actually share DNA profiles, where we're not certain that we have an exact match or not. All that would be shared would be a similar or close match, and that would mean that after discussion between the national DNA data bank and the foreign country officials...whether or not they agree that they do have a match. After that, the new amendments would then permit, as we do now, the sharing of the personal information, the identification information.
Yesterday, during your tour, you may have noted that the personal information is separated from the DNA information at receipt of the DNA kits into the national DNA data bank, which ensures that the people at the national DNA data bank do not know the personal information that relates to any profile they have. So this discussion would take place anonymously between the national DNA data bank people and the officials in a foreign country as to whether or not they have a match. Once they conclude they have a match, then the information would be sent to the criminal history people, who would not get the DNA profile but who could then say, yes, we have a match with this person in a foreign country, and then decide how much information they would share internationally with the foreign country about the identity of that person, without sending any further DNA information. The safeguard is that there would be no ability for a random assortment of DNA profiles and personal information to be kept abroad. There would be that separation taking place.
The protection is also statutorily imposed that we have to have an international agreement that meets paragraph 8(2)(f) of the Privacy Act. These international agreements are all done through an Interpol-covering agreement--where all our DNA information is sent through Interpol--that the receiving country would agree to abide by the conditions we impose. The conditions we impose are that this personal information they receive would only be used for the prosecution or investigation of a criminal offence in that country. This would be a requirement bound through their charter agreements through Interpol that they would only use it for that purpose. These would be the caveats and conditions imposed on all exchanges of DNA information now and in the future, unless we amend our legislation.
I think you started off, and I may have missed the translation, by asking what is the rush for moving forward on this. It's not so much a rush as it is basically to get a piece of legislation in place that will help us to proclaim the previous legislation that was passed. As you know, because you were in Parliament, a bill was introduced to try to correct and bring into line some of the provisions from the old Bill , but because of the election, we lost that.
In any case, it seems to me this is a well-thought-out bill. I think it has to be taken in the context of the technology and science in this area moving very quickly. I think most people would recognize this is a very important tool for our law enforcement community to have, and I think it works out well for the individuals who might be wrongly charged or wrongly convicted, so to that extent it has....
Now, in terms of the designations between primary and secondary offences, first of all, I can tell you that 172 new offences have been added. It's an attempt—and it's never a perfect attempt—to separate out the crimes or offences in terms of seriousness. It's never a perfect match, as I know from having tried to work with amendments to the Criminal Code over the years. Obviously within the primary designated offence list you have some of the most serious crimes in the Criminal Code, and there are two categories within that.
But again, it was an attempt basically to get a new law on the books without precluding a review. You'll notice in my later comments that I said, please, if you want to take this up and have a look at it, I would certainly welcome any improvements, because this is not the last word on DNA, I can tell you that. In coming forward with these amendments when the technology and science are changing so rapidly, we can appreciate that times change and that the bills have to change--just as when Bill originally came in, we knew it had to be changed.
So I certainly look forward to any input—
Sorry, Mr. Chair, I was just responding to an e-mail. One of the three hunger strikers has been released from custody and I just wanted to respond to that.
, thank you for being here, as well as your assistants. I just want to get on the record my frustration at having to deal with DNA in the system this way. I think it was a gross error on the part of the former government to bring Bill C-13 forward, rather than bringing forward the review, because we ended up doing almost half the review, and practically every witness who came in front of us on Bill C-13 said we had to look at it more closely. Whether they were the chiefs of police, the police associations, the bar associations, the Privacy Commissioner--who has substantive concerns rather than process concerns--the witnesses at that time, without exception, were generally supportive of the system while expressing concerns about it, in terms of it not being broad enough, and in some cases in regard to some aspects of it being overreaching.
I wasn't quite clear, frankly, about your concluding comments and whether you were suggesting we send the review to the public safety committee. That doesn't help me a lot, because I'm on that committee too.
Have you considered the other possibility of having the justice committee set up a separate subcommittee just to do this? I'm not sure about the corporate history on this and whether it makes sense to send it to another committee. Perhaps they could look back on the evidence that was taken and the witnesses who testified.
But what I want to say to you clearly, and maybe to the committee as a whole, is that we have to get that review under way. And I have to say that if you stopped sending us so many crime bills, we might be able to do it. That was partisan on my part, , so I don't expect you to respond to that.
Do you have a concrete proposal as to how we can get the full review done as quickly as possible—and thoroughly?
Again, thank you for the question.
There is a limited expansion of the retroactive scheme, as you mentioned, to include persons convicted of a single murder and also of a single sexual offence committed at different times. Additions to the list of primary offences include robbery, break and enter of a dwelling. We're trying to expand the regime that's in place.
There was probably a consensus that, as originally proposed and introduced, it was fairly narrow grounds upon which you would be able to obtain a DNA sample for a smaller range of offences. Mr. Yost just pointed out one of the other difficulties, that if you didn't get the DNA sample right there, you were out of luck.
I think there's a recognition, and I think this bill encapsulates that, as did indeed the bill that died on the order paper, quite frankly. There's a need to get more samples and expand them to a wider range of crimes, because this is an important crime-fighting tool. This is not something from Star Wars or something in the future; this works now for police officers and it's something they have to have. What we are doing basically in expanding the scope of this bill is responding to the advances in technology and to the recognized value of this particular process. Basically we're trying to keep up to date.
That is one of the challenges you have as a member of this committee, and quite frankly, that we have, that I have as a minister of Justice, to stay up to date on the technology. It changes all the time, and this is why I would expect this committee will always be a busy committee. It always has been a busy committee.
I will go back to my comments to Mr. Comartin. This won't be the last word on this. I'm quite sure that science, technology, and experience.... If we conduct a review, I would expect to get good input on that because that's what we're looking for. Anytime you move into a new area of science, and this is relatively new, and it's changing, we have to stay ahead of the curve, and this is what Canadians count on us to do.
I should clarify that there are two aspects to international DNA exchanges. One is at the request of Canadian law enforcement agencies, who would ask that the crime scene DNA profile they've derived, and for which they have no suspect or answer, would be sent abroad for comparison with international profiles. This would be sent through Interpol to any country the investigating law enforcement agencies had asked or requested the RCMP to send it to—subject to the conditions we explained. They would only be permitted to use that profile for the investigation or prosecution of a criminal offence. They'd have to agree to that particular condition.
At this time, internationally, this is the only way to send a DNA profile—and only the DNA profile, not the sample or the stain that could be analyzed for all the other genetic propensities. These are the 13 loci that were derived, or nine, in some cases, with the RCMP labs, that are sent abroad for comparison. All they would have would be those double numbers that you saw on your tour yesterday. It would be the two, or sometimes only one, at each of those sites they send, those alleles. The foreign country to which it was sent by the RCMP through Interpol would then be able to respond back as to whether or not they have a match with their database for their investigative procedures. This would then be referred to the law enforcement agency, which would use the normal means of communication to identify what information in their investigation matched the foreign information. This would not be done through the national DNA data bank, but directly between the two law enforcements agencies involved—the one in the foreign country and the RCMP.
With respect to foreign requests, when they send a DNA profile here for a search, only now are we able to tell them whether or not we have a match, as a result of the changes in . We could not tell them and give them a copy of our DNA profile at all. It would simply say, yes, we have a match, are you interested in the personal information? Then they would have to agree to accept the personal information we have through the criminal records section of the RCMP that identified the person. That information would then be subject to the same international Interpol agreement, and we would insist that the information only be used for the investigation or prosecution of a criminal offence.
The problem in many cases is that we don't know whether we have a match, because different systems are used abroad to analyze DNA. They use what we call different analysis kits. Kits are, as I understand them, and I'm not a technical expert, designed so that certain enzymes in those kits produce the DNA profiles from specific engineered zones in the DNA. Certain countries use different zones than we do. In many respects, all we can do is find out that we have a match at three, four, five, or six of the zones of our normal 13, and we don't know whether they match the rest. So in regard to our international exchanges, there is a great propensity for us not to be in a position to tell them definitively whether we have a match, unless we send them the other profiles so they can potentially re-analyze them or examine their information to determine whether we in fact have a match.
So what we're proposing in is to allow us to do what we can now do domestically in Canada under , which is to actually send them a profile and ask them if it really matches theirs, or if the profiles are potentially the same because they're close. We'd ask, did you make a mistake in your analysis, or did you report a number inversely and get them mixed up? Then we could say, there was a clerical, technical, or scientific error, and would you re-analyze them? They might be dealing with a mixture of samples. Which profile were they reporting on in their crime scene? Was it correct in their crime scene? There may be a number of reasons, such as a degraded sample that didn't amplify as strongly as it might have. It's for that kind of reason we want to be able to send a profile abroad. We can now do that domestically under , and we're simply asking for the same power to do it internationally, to ensure that in the many cases that might arise internationally, we can be certain we have a match. Once we know there's a match, we would then go to the normal rules we have in place.
That's all the information that would be sent; it wouldn't be any other genetic information. The sample wouldn't be sent. They wouldn't be able to do a separate analysis, other than what they have on their own files and in their own labs. They would only have this information saying there's the potential of a probable match, and we want to show you our profile to see whether or not it matches yours. The people doing this comparison would not know the personal information; they would not decide to send any personal information about the individuals that we have until they've concluded there is in fact a match that could be sent abroad.
Good morning, minister. First of all, I want to congratulate you on your appointment. I haven't previously had the opportunity to do so.
I'd like to ask a question, mainly of Greg Yost or Mr. Bird.
As we know, the Canadian Criminal Code was introduced in order to protect Canadian citizens within their country. Naturally, under the bill that we have considered, we know that we have to communicate with foreign countries. At the risk of repeating myself in my question, you currently seem to have — at least I saw yesterday — “very nice and very efficient” laboratories. I think we can congratulate you on that. However, something intrigues me.
We know that we can send samples to one or more countries for comparison purposes. You said that the reverse was also done, but in accordance with very strict criteria. When a person, a refugee for example, enters Canadian territory, the country where he comes from has, in many cases, been completely destroyed. We don't know what's previously happened to him. Was he a drug dealer? Did he kill someone in his country? As a result of a change of government, did he switch from being an oppressor to being oppressed from one day to the next?
So this person enters our country, and we have extremely generous immigration laws. It would naturally be interesting to know whether he has committed an indictable offence in his country, if only to be able perhaps to monitor that person, without necessarily denying him entry.
I'd like to ask the question, but I don't know which of the two could answer it. Do you have a way of determining this problem? We're in an extremely welcoming country for refugees. These are all good people, but people who may have committed crimes are part of these groups of people. If their country had not been destroyed, and if we had had agreements, perhaps it would be possible to trace them. Do you have something so that we can have what we can call a firewall?
Congratulations, Mr. Minister, on your appointment. We appreciate having you here today.
I probably should direct my question to Mr. Comartin, because he made a comment to me a while back about the Criminal Code and the need to revamp that entire package.
When I see what we're trying to do with the DNA bank, and then I look at the definitions throughout.... You see, I'm not a lawyer. I don't have a legal mind. I'm just an old school teacher who likes to clearly understand things. I see a whole lot of confusion when we get into definitions and other things pertaining to DNA.
My main question is whether I can be absolutely certain that an individual who committed a crime, say, 20 years ago, and that crime doesn't exist in the Criminal Code today--I'm thinking specifically of rape. Rape was referred to in the Criminal Code once upon a time; it no longer is. I'm thinking of statutory rape. Once upon a time it was in the Criminal Code; it no longer is. Those are just a couple of examples of what I'm driving at. How confusing is it for people who work in the DNA system to operate under a Criminal Code that, for whatever reason...?
I still don't know the reason that rape and statutory rape were taken out. I don't even remember when that happened. It used to be quite clear in the minds of people what that meant. Today it's all encompassed in “sexual assault”. Everybody wanted to know what “sexual assault” meant, so they came up with a list of definitions--everything from sexual interference, sexual touching, to rape. With regard to having sex with somebody under the age of 14, that person is guilty of having sex with someone who is 13 years old and 11 months, but if they are 14 years old and one month, they're not guilty.
It's difficult to explain myself. You talk about being confused. As an ordinary person who's trying to get into the Criminal Code from time to time and not understanding three-quarters of the stuff, is this a hindrance to the department, particularly the DNA people, in any way, or am I living in an imaginary world?
Mr. Chairman, many times with the changes named to some of these offences--and there have been some alterations and modifications over the years--there are provisions within the Criminal Code that include those previous offences, so somebody's not getting off.
With respect to your comments about changes to the Criminal Code, and that it sometimes seems complicated, I can tell you that from time to time proposals have been made to completely revamp it. I'm sure Mr. Lee was around when people were saying we should just take the whole Criminal Code and start all over again.
Basically, what we have here is an adaptation of the English Criminal Code from the 19th century, and it must be continuously updated. The bill you have before you is one of the updates.
On the subject of changing public attitudes, you mentioned the age of protection. If you go back to the 1870s, it was very common and accepted that people at age 14 got married, and they were adults. Today we look at that and say, just because the law in the 1870s had prohibitions with respect to 14-year-olds doesn't mean the law shouldn't be changed to 16. And that's the challenge you have.
We find this all time. Twenty years ago in this country, if you or somebody set fire to your car, that was not arson, but if somebody set fire to a stack of vegetables, that was arson. You say, how could that possibly be? Well, it's because the arson provisions of the Criminal Code 20 years ago in this country were written before there were cars, and the included property offences didn't include somebody setting fire to a vehicle.
So it seems to me that's the challenge we have. We must be continuously looking at these things.
With respect to this legislation, you raise an interesting point. It is somewhat complicated by reason of the fact that the bill you have before you is a stand-alone bill, but there are provisions so that under Bill C-13, which was passed in a previous Parliament, those could be enacted. So it's very challenging, I'm sure, even for lawyers to try to follow this, and you indicate you're not a lawyer. Nonetheless, it's the results that we want, that we're looking for, and certainly this is a step forward in the right direction.
With respect to your other comments, I hear what you're saying, but again, the Criminal Code has to be continuously updated on a regular basis.
Yes, and I will be quick.
Thank you, Mr. Minister, for appearing again.
I'd like to ask a question. I, too, am in support of this bill. Our mantra over here is that we want to make sure we have legislation that will work. This may be more of a question for the legal people here, but, Mr. Minister, you glossed over R. v. Rodgers, the decision of the Supreme Court of Canada, as being supportive. On the face of it, it is. I actually took the time to read it and then became a little more uncertain about how helpful it will be.
Here's my brief question. That decision came out in April of last year, 2006. Bill C-13, presumably, was drafted and tabled and commenced. I wasn't here, but the train started for Bill C-13 in advance of that. ratchets up Bill C-13 in a number of areas we've talked about.
Let's review Rodgers for a moment: the person in question was convicted and sentenced to four years for sexual assault, and he committed that offence while he was on probation for a conviction of sexual interference. I know this case happened before the act, and there were a lot of complications, but the bottom line is if anybody should have been subject to a DNA identification order, it was this individual. Yet, it was a four to three decision at the Supreme Court of Canada. It was tight, and that was before Bill C-13 hit the road, because it actually never got passed. And it was before , which ratchets this up a little bit, and which is presumably going to sail through the committee.
I don't want to segue into picking the proclivities of your judges on the Supreme Court, because we're not going to talk about judicial nominations and what they think, but when you have Chief Justice McLachlin, who has been critical of the government, in support of this legislation--by reference to Rodgers, I suggest--as well as having Justices Bastarache, Abella, and Charron--not exactly the right wing of the Supreme Court-- support it, I guess my question is how secure you feel, if the only case you have is Rodgers, that will pass muster with respect to the discussion of ex parte hearings, and the presumptions, the taking away of judicial discretion implied in all of these issues, and section 8 of the charter? There's a mouthful for you to answer.