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 24, 1998

• 0902

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Order. We're ready to go.

Today we're still operating on Bill C-3 and reviewing Bill C-104 from the first session of the 35th Parliament.

We have with us, from the Canadian Police Association, and from Windsor, Ontario, Neal Jessop of Windsor Police Service. He is also president of the Canadian Police Association. As well, Scott Newark is executive officer of the Canadian Police Association. Jon Netelenbos is vice-president of the Canadian Police Association. William J. Donnelly, who's from Windsor, is going to assist today with some demonstrations, I understand. Neale Tweedy is with the Metro Toronto Police Service. Robert Keppel is with the Washington State Attorney General's Office.

Welcome to all of you. I hear you have quite a show for us today, so go ahead.

Mr. Neal Jessop (President, Canadian Police Association): Thank you, Madam Chair.

I would like to say that I think this is my eighth year appearing here, and this is probably the most significant legislation for Canadians in the justice area that I have appeared on. It is certainly the most significant legislation in law enforcement and crime prevention that we have ever discussed with you. The long-term effects of the right legislation in this area, in our view, will lead to a significant reduction in violent and serious crime.

We're hoping to do a number of things for you today. As we understand it, there is a serious concern with some people believing that procedures in relation to the taking of DNA are intrusive. We thought the best way to deal with that was to show you how it's done in relation to the other tools we use in our profession every day.

I've asked Mr. Donnelly, a fully qualified forensic technician, to use Mr. Newark as his subject today and take samples from him—a scary thought in itself, by the way—and actually show you what will take place, we hope, in the future in relation to the taking of these samples, just like we take fingerprints.

• 0905

The Chair: Okay, but I think Mr. Discepola should have to take the breath test.

Mr. Neal Jessop: I could probably take it as well as he could, Madam Chair.

Inspector Neale Tweedy is from the metropolitan homicide squad. Neale is in charge of the Christine Jessop homicide investigation, one of the most significant and expensive investigations into the homicide of a child in Canadian history. I'm sure Neale will talk to you about the significance of the data bank, how it could have been and would be and will be useful for him in the solution of this crime.

Bob Keppel is a very interesting person. He has worked in all the major serial homicide investigations of any significance in the United States for several years. I think Bob will talk to you about the necessity for taking samples from criminals you would not consider to be violent. He will talk to you about how people who are involved in minor crimes progress to major crimes, particularly with intrusive crimes such as the breaking and entering of people's homes. He has really provided us with a considerable amount of education over a significant period. Of course Bob holds the position he does and deals with this on a full-time basis.

Madam Chair, perhaps Scott and Bill could take it from here.

Mr. Scott Newark (Executive Director, Canadian Police Association): Madam Chair, first I would like to thank you for allowing us some flexibility in the way we wish to present. It was clear to us that some advantages could be gained from actually demonstrating some of the things that in many ways characterize the kinds of insights the Canadian Police Association can bring to legislators, some of the actual insights off the street; nothing more particular, I think, than the sample-taking you're going to see demonstrated this morning. We just want to thank you for giving us the procedural flexibility.

Neal has probably commented on it this morning, and my guess is both of us have the last ten times we've appeared before the committee. In one way or another we have tried to work in DNA data banks. On some of the most unrelated topics, when we've tried to suggest to you how important a tool this is...because while it certainly could be said our relationship with governments over the five years or so that the CPA has been testifying has not always been wholly in agreement with what has been put forward, I think on reflection we have had an effective partnership in improving legislation. If you think back over the various federal government initiatives in criminal justice reform, and frankly some of the huge improvements that have occurred in the last five years, I would suggest that is very much part of the partnership that has occurred.

By no means is it something we are totally satisfied with, nor, I suspect, have you always agreed with everything we've said, but I want to echo Neal's comments this morning. There has never been a more important public safety piece of legislation and tool than what you're considering today. I first started coming here in 1989 as a crown prosecutor, and that has never been a more accurate statement, in my judgment.

To get right to the point, we have monitored the testimony of various witnesses, attended different presentations here. We've been aware when the minister attended to give his evidence. In fact, as you may know, we did our briefs up in advance, supplied them to members, and even directed some specific questions to what we thought were some deficiencies in the bill. We made sure, by the way, the minister had those in advance too, because the only interest here was in showing that there was a better way of doing this and some improvements could be made.

• 0910

If you recall, when the minister was here—and I have the transcript of his evidence—he was asked essentially what the fundamental problem was with taking samples at the time of arrest, because that issue had been around for awhile, back when the bill was introduced. He was asked whether it was a cost item and he indicated it was not. Rather, the problem stemmed from constitutional concerns in relation to the sustainability of taking samples at the time of arrest, and as well, in a general sense, the concern was about whether that was essentially something Canadians countenanced.

I believe it was Mr. Ramsay who asked whether or not an independent legal opinion was going to be sought in relation to that, because the minister had advised that officials from the Department of Justice, of course, had suggested this was the route that should be taken.

We went and got such an opinion from a name I suspect many of you within the Liberal Party may recognize: Tim Danson, who is somebody who has a long standing with his family membership...and indeed, he is somebody who is known as a superior criminal/constitutional defence lawyer.

The opinion is here. It has not yet been translated. We will distribute it. It goes through all of the nature of intrusiveness and timing and everything else, and I'll just quote the conclusion from Mr. Danson's opinion:

We have been unable to identify any credible argument that would support the proposition that Bill C-3, if amended to permit the DNA testing at the time of arrest, would somehow be rendered unconstitutional. If that were so, then Bill C-3, as presently drafted, along with sections 48.705-48.709 of the Criminal Code

—which is the old Bill C-103—

would be unconstitutional.

If the government chooses to restrict DNA testing to the date of conviction, rather than the date of arrest, then that is a purely political judgment. There are no legal impediments.

I urge you to review Mr. Danson's opinion if you feel it is appropriate to call him as a witness. We supplied a copy of the opinion, although only this morning, to the departmental officials, and hopefully they will be able to wrestle with it in coming to a conclusion on this important question.

I will mention one other point that I understand somebody else may have suggested to you. If there is an issue in relation to whether or not it is sustainable to take it at the time of arrest, refer it to the Supreme Court of Canada.

I've actually had discussions this morning with Mr. Jessop. Although this may be something of an impractical offer, the Canadian Police Association will pay for a constitutional reference to the Supreme Court of Canada on the question. That is how important an issue this is for us.

I would suggest to you that this is something that is worth while. You should think long and hard about the opinion suggested, which is that in fact it is constitutionally sustainable. It is a process, actually, a reference that can be done, and it can be done in anticipation of legislation too.

We tried to focus on what we thought the objections were to the fundamental question of the timing of the taking of the sample. You're going to hear some information and some of the data we have provided about the unsolved serious crimes of homicides and sexual assaults. You'll hear from Mr. Netelenbos, a street police officer in Calgary, about that reality. Those unsolved crimes are fundamentally what we're going to be able to get at or, conversely, that we're going to miss if we don't take the sample at time of arrest.

One of the points that had been put forward, of course, was about the potentially intrusive nature of the kind of sample-taking that was involved. With that in mind, we decided that rather than our telling you it really isn't all that intrusive, we would show you, with your indulgence.

At this point I am going to turn it over, if I may, to Bill Donnelly, who is going to explain a little bit of the background. As Neal mentioned, Bill is an identification officer. He will explain a little of the background about forensic identification purposes, how it got started and how it has evolved. I would ask you to keep that in mind, the evolutionary nature of this process and what specifically is involved. Then we're actually going to show you how it works, and you can judge for yourselves about the intrusive nature of what it is that's contemplated.

Bill.

Constable William J. Donnelly (Representative, Canadian Police Association): Thank you.

Very early on in the history of policing in Canada it became an issue for any investigating police officer as to who the person they were dealing with was. It became a fundamental issue of both the criminal investigation and the legal process in Canada: how could we make sure that the person being brought before the courts was not somebody who had previously been brought before the courts, possibly under a different name?

• 0915

When these issues started to become fairly predominant in the late 1800s, the Government of Canada went so far as to pass the Identification of Criminals Act in 1898. This piece of legislation for the first time allowed police officers to take fingerprints or, at that time with what was called the Bertillon system, a system of measurements from somebody for the sole purpose of trying to establish a unique identifier to an individual. So regardless of what name this person used when committing a crime or being processed by the courts, or which jurisdiction he or she did that activity in, we could be certain the same person was being prosecuted for the right crime.

William Donnelly could not commit a theft in Windsor, go to the jurisdiction of Ottawa, then commit a crime in Ottawa and use the name of Scott Newark, because as soon as these measurements were taken we would very quickly find out that person was already on file and had committed crimes in Windsor. I would then be treated as a second-time offender in Ottawa instead of a first-time offender, which was what I was attempting to do.

With that in mind, the Bertillon system was brought in originally from France. This system was sanctioned by the Government of Canada, and when we look back, it's almost similar to medieval torture in its scope of what was used to identify people at the time. This was before the era of DNA. This was before the whole concept of fingerprint identification came into being. At that time a gentleman by the name of Alphonse Bertillon in France had realized that if we measured certain parts of any human body and took 11 accurate measurements of 11 different body parts, no two people on the planet would have the same series of measurements.

What this forced police officers to do, and what it forced criminals to be subjected to, was a series of 11 complex measurements. Criminals were forced to stand, balancing their weight on one foot with their arms outstretched so the police officers, with very sophisticated tools for that time, could measure the length of the right foot. A set of wooden callipers was placed on either side of the criminal's head and a screw was turned until the wooden blocks came to meet on the extreme ends of the skull so a finite measure of the width of a person scull could be established. The length of the face, the length of the human forearm from the elbow to the tip of the finger, the length of the right index finger—these measurements were all taken in order to come up with this Bertillon system.

The process was time-consuming, very much subject to operator error and, if not done properly, could result in a misidentification. This, however, was all sanctioned by the Government of Canada because it was the best way to identify people at the time, based on the technology known.

In the early part of the 1900s, the whole concept of fingerprint identification superseded everything known about the Bertillon system. The Bertillon system had its faults. People were misidentified, and in a tragic case that occurred out of the United States, two brothers who had been separated at birth were identified as each other. A long process evolved in the United States that became known as the Will West case in which case the Bertillon system was proven to not be the best means of identifying somebody. At that time fingerprinting was adopted.

No amendment was made to the Identification of Criminals Act. If we read the Identification of Criminals Act today in 1998, there is absolutely nothing on the face of the Identification of Criminals Act that mentions fingerprinting, yet this is the statute we use for our authority to obtain fingerprints.

That's allowed because in the Identification of Criminals Act there's a clause that allows an order of a government in council to amend it to allow for anything that has the like means or the like focus of the Bertillon system; that is, to identify people. That's all it is.

With that, an order in council was passed and fingerprinting was allowed in Canada in about the 1920s. From that time on, fingerprint identification has been the cornerstone of forensic criminal identification in Canada because it was the best technology at the time. At that time nobody was even aware of the whole concept of DNA. The molecule itself wasn't even identified until some 20 or 30 years later.

So we are allowed, pursuant to the Identification of Criminals Act, to use as much force as is reasonable to effectively acquire the fingerprints of anybody charged with or under conviction of an indictable offence in Canada. I'll use Mr. Newark to demonstrate how this allows us, any time we have a suspect under arrest and charged with an offence—not yet convicted in courts by any means, because this is how we're going to identify him to the courts to make sure this is the right person charged with the right offence—to subject this person to having his or her fingerprints taken. This process is done in Canada across jurisdictions many times every single day. These fingerprints are kept on file in a national data bank, even containing people who have not yet been convicted of a criminal offence.

• 0920

This allows us not only to compare these fingerprints to any that may be on file to make sure that Mr. Newark is in fact who he says he is and not somebody who has already been processed before the courts, but also now to take these fingerprints and compare them to any crime scene prints that may be outstanding in any jurisdiction across Canada. It's a powerful and very effective tool that we use every day, something that's been sanctioned by the Government of Canada, something that's been upheld by the Supreme Court of Canada, and something that's done so often every day that everybody just takes it for granted.

Mr. Scott Newark: It is, however, not a random act. There are preconditions in law before somebody can be fingerprinted. There are defined procedures set by members of Parliament in defining what an indictable offence is and what powers of arrests are. It's not simply some process whereby we select individuals off the street and say, “We like the look of you. You might be somebody. Let's go ahead and fingerprint you.”

You're going to hear later on about the comparison of fingerprints. Even this kind of technology, frankly in the last century, of fingerprinting somebody on something like a shoplifting case has led to the system that Bill is talking about: the identification of people responsible for murder.

The principle is essentially the same in relation to using a different substance. It's just that the trace evidence that's there is something that doesn't match with fingerprints.

Cst William Donnelly: As Scott mentioned, not all crimes scenes have fingerprints. I've investigated a number of crimes, ranging from minor thefts to serious sexual assaults up to and including many homicides. We work with the evidence that is there. Fingerprint evidence is one type of trace evidence that we will find.

Technology since 1986 has allowed us to take tissue samples, fluid samples, and body fluid samples from a crime scene, and now possibly identify that back to an offender. Not only does it allow us to identify it back to an offender, but if we have a suspect in mind and we obtain a sample from that suspect, we can now eliminate that person as being the person responsible for leaving that sample behind. If the sample is the type of sample found in such a location as to indicate that this had to have been put there by somebody responsible for the crime, this absolutely eliminates that person as being the author or the depositor of that sample; therefore they could not have committed the crime.

The value of forensic evidence is in its absolute ability to exclude. We have no more powerful tool.

Because of that, we like to collect evidence in a number of different ways. Recently we've been allowed by the Government of Canada, in the DNA warrant sections, to obtain DNA samples of people for comparison. What I'm going to show you now are the three methods by which the Government of Canada, upheld by the Supreme Court, has allowed us to obtain DNA samples. There are three that we use.

The first one I'm going to do is the collection of hair samples. Although our hair contains no cellular material—there's no DNA in our hair, as most people are aware—our hair grows from a small amount of cellular material within our scalp that contains nuclei, that contains DNA that we can now extract that information from. So it's just a situation, if I'm authorized by way of warrant now, pursuant to the—

The Chair: Grab a great big chunk, will you, Bill?

Some hon. members: Oh, oh!

Mr. Scott Newark: Actually, ma'am, one of the benefits of this yesterday when he did it was that he took only grey hairs.

Some hon. members: Oh, oh!

The Chair: I have a way of dealing with those on my own.

Just get your hand in there and just let—

Cst William Donnelly: I have my work cut out for me if I'm only supposed to take the grey. We may be here a while.

It's only a matter of going near the back of the scalp, where the tissue is such that any hair we collect has at the base of it cellular material that allows us now to do a DNA profile. What I have between my two fingers here is a sufficient sample to establish a DNA profile of Scott Newark. This is all that's required. This is the only thing I need to do to get that. Properly packaged, properly collected, properly submitted and analysed, this allows me now to have a DNA profile of Scott Newark. That's all that's required.

The unfortunate part of that is that about 10% to 15% of the population cannot give a sample that has that cellular material at the base, either through lack of hair because of pattern baldness or because of other medical ailments or disorders, or because the hair is so fine that there's not enough strength when pulling on the hair to actually remove the root sheath from the scalp. So because of that, other methods are required.

• 0925

Mr. Scott Newark: Just before you go on, I want to make a reference. In the legal opinion you'll see—and perhaps I can ask for these to be distributed—one of the most recent cases from the Ontario courts upheld the constitutional validity of DNA warrants on the methods of extraction.

The one that decided that it in fact was not constitutionally sustainable—it was Mr. Justice Hill—was the process we just saw here, the hair extraction, and precisely for the reasons Bill just enunciated. You'll see that referred to in the judgment of Mr. Justice Hill, which says that while the other two samples have that statistical reliability, because hair plucking has that problem...he ruled that in fact that methodology was one that should not be constitutionally sustainable, notwithstanding the fact, frankly, that it's already in our legislation.

We wanted to make sure you had an understanding of exactly the scope of where it is. That issue has not made its way to the Supreme Court of Canada yet, but in another case referred to here, called Brighteyes, out of Alberta, the process itself has been held as being constitutionally sustainable.

Cst William Donnelly: With that wisdom, the Government of Canada thought there should be many different methods for the collection of DNA samples. One method is not always going to be the optimal way to collect a suitable DNA sample.

With that in mind, the process of obtaining what's referred to as a buccal swab, where a collection of the epithelia cells line the inside of our mouth, the tongue, all the cavities within the mouth, right down in the digestive system, could be easily collected by way of taking a swab of the inside of that surface. The amount of force required is less than what you would do to your own mouth every morning when you brush your teeth. You collect more epithelia cells on your toothbrush every morning when you brush your teeth than we will ever collect in obtaining a DNA profile or a sufficient DNA sample to obtain a profile of anybody.

All that's required in this case is to have the subject open their mouth, and taking a sterile Q-tip, under good conditions, just lightly rub the inside of the cheek; allow this to dry, and on the end of the Q-tip at this time I have a sufficient sample that would allow me now again to obtain a DNA profile of Scott Newark. That's all it is.

In my mind there's less involved in taking this than there is to rolling a complete set of fingerprints of Mr. Newark. More time is involved, more handling of him is involved, and more physical force is required. That's all that's need to obtain that sample.

Mr. Scott Newark: We have cued up on the television set a video. You've just seen a demonstration of the technique that's actually used, so we won't run the video. We'll leave it here with you as a copy. It's an instructional video for police officers in Scotland that actually takes somebody through the entire procedure and shows how they take the swabs out, how they enter them in, how they have the bar codes, and everything else.

The procedure you've just seen demonstrated is in fact that which is authorized by both the law and the authorities in England and in Scotland, and it's currently in use.

We'll leave the video with you, Madam Chair, to view at your convenience.

Cst William Donnelly: The last method allowed by the Government of Canada to obtain a DNA sample is by way of obtaining a sample of capillary blood from the finger by pricking it with a sterile lancet. This is by far the best method for us to obtain a suitable DNA sample. If the person is standing in front of you, they will have a sufficient amount of blood in their body to remove two or three drops in order to get a good profile.

Sometimes because of the chemical activity inside the mouth or the condition of the interior of somebody's mouth, a buccal swab may not always get a suitable sample. Again, there is a minimum amount of operator error involved. If the person doesn't rub vigorously enough or manipulate the swab enough, there may not be a suitable sample.

Yet by obtaining a drop of blood, everybody can see the drops of blood. Rarely do we run into a situation where it's an insufficient sample.

In that situation, by way of warrants, a process that's been done many times, the subject is asked to provide a finger. Using an alcohol swab, the area is cleansed and allowed to air dry. A sterile gauze pad is opened up. This is all material that is found commercially today in any pharmacy and used by anybody who has to take their own blood sugar levels on any given day, and sometimes by some people several times a day.

Once the area is cleaned, take a sterile lancet, make a small puncture in the finger, and about three to four drops of blood are collected onto a sterile gauze pad.

• 0930

This is going pretty fast. I don't know if I'll get this to stop.

The Chair: Well, don't worry about it. Just keep talking.

Voices: Oh, oh!

Mr. Scott Newark: I noticed you cleaned one finger and took it from the other finger.

Voices: Oh, oh!

Cst William Donnelly: For most people, with a moderate amount of pressure, the wound will self-heal and the bleeding will stop on its own within 30 seconds to a minute. If not, a small bandage is applied. Of the hundreds of times I've done this, I've never run into complications.

I'm not a medical professional. I've been trained to do this by medical professionals, but it's not something outside the scope of what any properly trained police officer can get. In fact, we have obtained several times over the course of many investigations, even in recent history using DNA warrants.

This small sample, when air-dried, is of sufficient quantity, again, to get a full DNA profile of Mr. Newark. He's offered to make this the first DNA profile in our new data bank, if necessary.

Mr. Scott Newark: Mr. Ramsay had asked a question during the minister's evidence that I want to go back to. It's about the methodology of taking.

In fact, the development of this is increasing. It is not that New Zealand or Australia actually uses the technology where they put somebody's hands on the surface and they take a print impression. It is, however, that as the technology evolves, there's a recognition that this is coming. In fact, you can actually get DNA information from simply putting somebody's fingers onto a surface and getting impressions from that.

You're going to see one last demonstration in relation to something already proved by law, where you can get that kind of DNA sample from simply deep-lung air, from air blown into something like a breathalyser. The only issue is in relation to the quality of the sample that's there, but as I think you can see, science is very quickly catching up to the whole notion of intrusiveness here. It really is not the issue.

Cst William Donnelly: When I first started at the forensic identification branch at the Windsor Police Service, the use of DNA profiling had not yet come into the realm of criminal investigations. It was still a procedure that we were hearing about, that was being investigated. At the time, it wasn't something we were using.

By the end of 1991, the Centre of Forensic Sciences in Ontario was allowed to do DNA profiling for the first time, but for them to receive a sample for profile at that time, based on the technology, they required a sample that contained a minimum of 50,000 nucleated cells.

That may not seem like much, considering we have billions of cells in the body, but that was analogous to a solid stain of blood that was about the size of a toonie. That was about the amount of blood required on a sterile gauze pad for a profile to be established. If they had less than that, a full profile could not be established.

I know that's the problem Metro Toronto ran into in the Christine Jessop investigation. At the time, the technology was not able to establish a profile based on the sample size available.

Remember that number, 50,000. By the end of 1997, the minimum requirement for a nucleated cell sample for a DNA profile was down in the range of about 30 cells. So just from 1991 to 1997 we've gone down from a requirement for a sample of 50,000 nucleated cells to about 30, which is about the amount we leave on the back of a postage stamp when we lick it to apply it to a letter to send it in the mail.

As technology catches up with us, we're able to identify and process trace evidence on a smaller and smaller scale. We'll be able to take it from people in a less and less intrusive manner all the time. In a few years, we might be able to get a full sample from somebody, sufficient to acquire a DNA profile, just by having the subject lick a sterile piece of blotter paper, and having that blotter paper dry. We'd put that in along with the person's fingerprint to make up their criminal identifier. That's where we're at now.

If we compare those methods with what we've been doing in Canada for years, even in the area of impaired driving.... I'm going to show you now what is required to obtain a proper sample with just a routine roadside screening device.

This is a Dräger Alcotest. This is the type of unit that's used across Canada to this day. More than likely it was used by the Ottawa police a few times last night, and will be used somewhere in Canada sometime today.

Canadians are subjected to providing a sample, upon demand of a peace officer, just on the suspicion that they may have consumed alcohol or were involved with alcohol prior to operating a motor vehicle. As a peace officer, I can demand, on mere suspicion alone, that they comply with this and provide a proper sample or be subject to a criminal charge.

When we take this sample, as you can see, there is usually more effort required in providing a roadside breathalyser sample than there is in obtaining any one of these DNA samples in terms of the profile.

• 0935

Mr. Scott Newark: Let me just add as well that the reason that's constitutionally permissible is because Parliament in the Criminal Code directs that the peace officer has the authority to do that. Consider for a second that this is before arrest.

That's the important part: the legislature has made that statutory direction. The people elected, in their wisdom, have said that they believe this to have a proper purpose, and so they made that statutory direction.

You'll hear arguments on the other side about it in the case called Stillman. You'll note this in our opinion as well. There's a constant reference in there to the difference between where there is a statutory direction—for instance, you people say this is what you want done—and where there isn't. That's why this is sustainable. That's why if you include these as authorized at the time of taking, it will be constitutionally sustainable.

From having done this and having had it performed yesterday, I can tell you, the person at the other end of this, that this is what I found far more difficult and intrusive in the sense of discomfort than any of the things you've seen displayed so far.

The Chair: Mr. Newark, isn't the fundamental difference that nobody is banking this? When you take a breath test, you're under suspicion for an illegal activity involving the crime at that instant. Once it's gone, it's gone. It's not saved for proving that you were driving drunk ten or three years ago.

Mr. Scott Newark: That's really absolutely correct. I think that's functionally the real issue involved here: DNA has the capacity to be used for things other than what fingerprints or breath samples do.

The point that I think we all need to remember is that all of this has already been authorized. We've been taking blood and breath samples, and things that could be used for DNA analysis, for years and years. And two years ago this Parliament enacted legislation that authorized the taking of samples for DNA analysis purposes.

I'm unaware of any instance of people conducting improper research. I'm unaware of anything where that has been shown to have been somehow put to an improper purpose. We actually even recommended that you understand this was the real philosophical concern. We were the ones who recommended that you should make it a crime if somebody does that.

By the way, you may have noticed in the legislation that this is a crime for which DNA samples could not be taken.

Make it such that there's actually a statutory requirement that if somebody is acquitted, unlike fingerprints, you should direct it in law that the sample must be destroyed. We recommended that in the full knowledge that it could be put to a different use.

The real threshold question, with respect, is, are we going to take this stuff? The answer is that you already authorized it to be done. So the question is, are we going to do it the best way possible?

Let's do this, okay?

Cst William Donnelly: Could you form a tight seal with the mouthpiece and keep blowing until I tell you to stop? Keep blowing, keep blowing, keep blowing, keep blowing, and stop.

The Chair: How did he do?

Cst William Donnelly: Zero. But you can see the effort involved just by seeing the colour change. A sufficient amount of physical effort is needed to fulfil that requirement.

The point you made—it's the fact that we're not data-banking this—is a good one. But say I were to ask him in the course of a RIDE program to provide me with a suitable sample for this instrument. And say he told me there was no way he was going to provide a sample. Say he refused to supply a sample.

At that point, he's now committing an offence for which I can bring him into the station, fingerprint him, and place his fingerprints into a national data bank that we've had in Canada since 1925. We can compare the prints he provides to me with those of every unsolved crime across Canada just because he refused to comply with that demand based on my suspicions. It's not a large stretch to bank some of this information so as to use it to compare with stuff that we already have out there.

Mr. Scott Newark: Thank you, Bill.

Mr. Neal Jessop: You're not going to use the—

Mr. Scott Newark: No, we decided against it. I almost died yesterday attempting to activate the breathalysers. I'm told that this is something of an antique, as well.

But that's the actual instrument used as a result of tests for this or the observations of the officer. This is a breathalyser device.

There's a device that functions similarly. You blow into it. There's essentially a photoelectric process that measures blood-alcohol concentration. It requires the same basic process of somebody blowing into the breathalyser such as what you saw on the alert.

• 0940

Mr. Neal Jessop: Before some of you came in, I explained to you that we have with us Inspector Tweedy from the Metropolitan Toronto homicide squad, who is in charge of the Christine Jessop investigation. He is going to speak to you. We also have Bob Keppel from the Washington State Attorney General's Office, who has some significant information for you. As well, we have Jon Netelenbos, who will give you some numbers in relation to the things we may be able to do, if you see fit to provide the legislation we need.

Neale.

Detective Sergeant Neale T. Tweedy (Metropolitan Toronto Police Service): Thank you, Neal.

Madam Chair, for the last 26 years I've been a police officer in Metropolitan Toronto. For more than 15 of those years, I've been involved in homicide investigation, which I think probably makes me one of the longest-serving homicide detectives in the country.

About three years ago I was charged with the responsibility of taking charge of the new murder investigation into the death of 9-year-old Christine Jessop. This was shortly after Mr. Guy Paul Morin was acquitted by Chief Justice Dubin of the Ontario Court of Appeal.

Since that time, I staffed an office of nine officers and we've had a three-year dedicated effort to locate, identify and bring to justice Christine Jessop's killer. I've spent $2.2 million in that effort to identify and locate the killer of Christine Jessop.

Christine Jessop was abducted from the town of Queensville on October 3, 1984. She was a bright, happy young child. I think what this states is that when you're abducted from the town of Queensville, you can be abducted from really any town in this country.

She was taken to an isolated spot where she was subjected to rape. There's evidence of torture about her body. She was stabbed front and back and her throat was slashed to the degree that it partially decapitated her. She then lay in the woods, spread-eagled, and for the next three months she was undiscovered, her body being recovered December 31, 1984.

When we talk about intrusiveness, I can't imagine anyone in society being subjected to the intrusiveness that Christine Jessop was subjected to.

When we go about attempting to solve a case like this, we attempt to identify strategies. How can we shut the door behind us on a variety of issues? One of the things I needed to do was attempt to link this case to other cases, either crime scenes that hadn't been solved, or two offenders.

We live in a very, very high-tech world and I've been involved with DNA since 1988, but it's sad to say that in a high-tech world I'm reduced to low-tech investigative techniques. I was reduced to sending 750 letters to law enforcement agencies around Canada and the United States asking these law enforcement agencies to please research their files. Do you have a case like this that may assist me in solving this crime? Or do you have a DNA marker on file that links to my DNA marker? Additionally, I was reduced to sending letters to 100 forensic science labs across Canada and the United States in an effort to locate this marker.

In this high-tech world, this is totally unnecessary. It's haphazard. It's incomplete. The marker could very well reside in a laboratory in Canada or in the United States.

Additionally, I attempted to establish criteria for identifying individuals who might be predisposed to doing this. The criteria that I laid out involved geography. Were there like offences committed, or maybe offences that weren't quite so violent occurring in Durham, York or Simcoe counties? Through that established criteria, I went into the jails—in particular, Kingston Penitentiary, Millhaven Penitentiary and Warkworth Penitentiary—and obtained blood samples, consentially, from those inmates that I wanted to eliminate, who were actually operating in the area.

I'm dissatisfied with my work because it's haphazard and it's incomplete. It's subject to the limitations of the criteria that I develop.

• 0945

After three years of commanding a team of nine people and a totally dedicated effort we are frustrated, because we haven't brought this killer to justice. I will tell you this individual has likely committed crimes before this offence and likely committed crimes after this offence. It's my fear the individual is residing at the pleasure of Her Majesty in one of our penitentiaries as we sit today and we can't locate him.

I ask you to enact legislation that is crafted in a meaningful way to prevent future Christine Jessops. There will be more Christine Jessops, believe me, if this legislation isn't crafted properly.

We talk about issues of community-based policing and crime prevention. There is no more important tool for policing in the 1990s or into the new century than what this tool can provide.

I understand what domestic violence is about. Many a time I've been in charge of cases of domestic violence. I've been in charge of stranger-on-stranger types of crimes.

To be very blunt, I need your help. You can make a difference. This is a wonderful opportunity for law enforcement, for the protection of women and children in our society, and I ask you to help me do this. This is the only comfort I have left after three years of attempting to catch the individual who did this.

Mr. Bob Keppel (Washington State Attorney General's Office): I will have to admit, Madam Chair and members of the committee, I've never appeared before a group such as this before. Usually I'm out assisting police officers and detectives on how to catch killers and rapists. My main job with the Attorney General's Office in Washington state is that I'm the chief criminal investigator. I supervise a homicide investigation tracking system. The name doesn't apply to everything we do, however. We also do rapes, arsons, robberies—those types of tracking—so we will be able to link various similar crimes together.

In the linkage of crimes, we have studied many things in the state. My experience leads back to the over 2,000 murder investigations I've been a consultant in or actually investigated, and also the over 7,000 rape cases I have studied, going back to 1980.

What I have found is that the backgrounds of various offenders who commit rape and murder.... When they began their careers early on they suddenly, as if by magic, progressed in their behaviours from being peepers, exposers, to breaking and entering, house burglaries, house-breaking, with various stages along the way. It has been my impression that we, as law enforcement, over the years have dreadfully underestimated those crimes in the whole understanding of violent behaviour, because it is those crimes that actually lead to the more serious violent crimes in a criminal's background.

What is interesting is that to prove this we conducted a study of 621 abducted child murder cases in the United States. It covered 44 states and there were 419 killers we covered during this time. Of those 419 killers, 60% had prior arrests for violent crimes. In the United States violent crimes include burglary in the first degree, which is basically entering the dwelling house of another in the night-time when they are there and committing a burglary or crime therein—robbery, kidnapping, all the major ones we would traditionally think of as violent crimes.

Interestingly enough, of these 419 killers, 53% had similar violent crimes against children in their backgrounds, where they had molested children—indecent liberties, rape of a child, whatever—and had already been through the system once and then went out and committed a child murder after that.

• 0950

So the odds are that in your passage of this bill, you're going to help prevent more and more crimes, repetitive crimes, by these offenders. Rapists are repetitive criminals. Sex murderers are repetitive criminals. There's no known treatment for some of these people who commit stranger rapes and are sadistic rapists. There is no known treatment for it. So whatever time they spend, the one time that they may spend in prison, will certainly count for the other offences they'll do once they get out. So we need that man's DNA in our systems.

Interestingly enough, in the United States the DNA data banks have attributed 200 hits to that data bank system, whether it be in the state of Washington, the federal system or other states. Over 50% of the crimes that those people were originally arrested for were burglaries and breaking and enterings. That's the reason the DNA was taken in the beginning from those criminals, and we were able to solve rape cases and murder cases based upon their previous collection of DNA at times when they committed burglaries and break-ins. So we consider that a pretty significant matter to bring before you.

I think the most interesting thing about DNA is that we're not only talking about criminals here but also about the innocent. So far, there have been 52 examples in the United States where previously convicted criminals—thought to be criminals—were exonerated through the use of DNA.

In law enforcement, we look at DNA as a way to reduce the number of potential suspects we have to look at. Without a DNA data bank, what we have to do as investigators is to go out individually and confront suspects, either get the probable cause to take their blood for comparative purposes or ask for their permission. That is a very labour-intensive, resource-intensive way to go about doing business as investigators, and more than likely we'll waste a lot of people's time doing that.

When you look at cases like Ted Bundy, Wayne Williams, Clifford Olson, and Paul Bernardo, all of these guys who have killed people more than once over time, what we're asking for is the potential to stop them before they kill somebody else, and the DNA data bank provides that availability to get to those criminals earlier. Without it, we're in for the long haul, and all of us who do investigative work look at DNA as probably the most significant thing to come along since fingerprinting. We don't catch people with fingerprinting any more, as skilled killers will go out and protect that area. It's a different story with DNA and how you leave that at various crime scenes, because the killer can't always account for his DNA at crime scenes.

I thank you for your attention.

Mr. Neal Jessop: Before John gives you some figures, Bob has described to you precisely why this legislation is inadequate. I don't think there's anybody who could have accomplished it better. We cannot go with this legislation and get Clifford Olson's DNA. You have to fix that, and you have to fix the other inadequacies in it, or everything that Bob described to you will not be accomplished.

• 0955

He has told you where these people live in their minds. They actually feel that going into your house gives them, for want of a better word, a rush. They are inside your life. They have control over you. They then progress, as Bob said, to the more violent crimes that cause bodily harm to our people.

If you don't include those types of crimes, if you don't do it exactly as the Identification of Criminals Act says to do it, we're going to miss those people. If you don't do it at the opportune time, we're not going to discover who they are until they're long, long gone.

Jon.

Sergeant Jon Netelenbos (Vice-President, Canadian Police Association): Madam Chair and members of the committee, I'm a sergeant and front-line supervisor in the Calgary Police Service. I'd just like to give you a thumbnail overview of some of the statistics, and then make a few comments.

As police officers, we devote hundreds and thousands of investigative hours to endeavouring to identify the perpetrators of unsolved crimes. It's important to get some kind of perspective on it. If we took an area such as my city, Calgary, we have 25 unsolved homicides since 1977. Edmonton has 38 unsolved homicides since 1980. From 1978 to the present, Windsor has 19 unsolved homicides and 408 unsolved sexual assaults. And if we go to a larger centre, Toronto has 89 unsolved homicides and over 3,000 unsolved sexual assaults from 1992 to 1996. They're staggering numbers when you look at them.

In Calgary, I was talking to the staff sergeant in charge of homicide. He said we're waiting for some revised legislation because we have a 1994 double homicide in which DNA evidence was obtained in a back alley, some blood evidence. It would be wonderful if we could link this to even a house-breaker.

When a new type of system called AFIS, or automated fingerprint identification system, was introduced in the late eighties in Calgary, it allowed fingerprints to be immediately matched to ones entered if there actually was a match. In one month, we solved a homicide that occurred in the late seventies. It was a vicious homicide in which the victim was a woman in her late eighties. When we made the hit, talk about euphoria.

I leave the psychological and legislative analysis to Dr. Keppel and Mr. Newark, but I look at it more pragmatically as a street supervisor. This is not a matter of acquiring more police powers. This is a matter of solving some very serious crimes and solving them, one, for law enforcement—and while economics shouldn't play an integral part in this, it is worthy to note that these horrific crimes are labour- and cost-intensive; and two, for victims of serious crime, victims or families who in one way or another seek resolve or to find some type of closure.

Far more important is this: as a front-line supervisor, I've had the unenviable task of notifying families of victims. I dare say it's a dreadful task. If the lives of a few of our citizens are saved through DNA data bank regulation that allows us to take DNA samples at the time of arrest.... No, if even one life was saved through allowing us to take samples at the time of arrest, even one, then surely there's only one recommendation that this committee can make.

Mr. Scott Newark: Let me just conclude.

Neal Jessop has made reference to some of the things specifically within the bill. If the time permits, perhaps we can get to them during the questions.

On the point that was made in relation to Clifford Olson, I just want to make sure that we capture that. In the way in which the bill is currently drafted, the Government of Canada, through two federal agencies actually—the RCMP and Correctional Service Canada—was so concerned about the possibility that this guy may have been involved in other crimes, we actually flew him around the country. We also supplied him, through Correctional Service Canada, with video equipment, to be able to tell on video what he had actually done. That's how concerned we were.

• 1000

But the law wouldn't allow what you saw being done with this little Q-tip for the same purpose. Ask yourselves if that makes any sense.

That proposed section, 487.055, needs to be redone. With respect, you've heard our suggestions about the identification of criminals. I would suggest to you that kind of approach is what makes sense. At the very least it should include all the designated offences for which someone has been convicted, lest we literally condemn ourselves, and frankly the nation, to what John has said. This is one of those circumstances where we know what will happen if we don't do it in this way. We know someone in those circumstances will commit that kind of crime and we will know it was preventable.

I urge you to examine the legal issues. If that's what is stopping this from being done, then please take the time to stop and focus on and look at those legal issues.

Madam Chair and, I know, Mr. Lee are aware of a previous instance when our association brought forward a separate legal opinion in relation to paragraph 745.6(2)(d), where there was a bit of an accident and something that had been given to victims of crime and their ability to give evidence was actually taken away unintentionally. It contradicted a previous bill. We pointed out, in fact, that it had taken place. There is good reason to pause here and to look, to reflect, and to think.

I close by sharing one observation I've had in my time working as a prosecutor and working with these guys. You have about 125 years of law enforcement experience surrounding me. Listen to them.

Thank you.

The Chair: Mr. Ramsay.

Mr. Jack Ramsay (Crowfoot, Ref.): I want to thank the witnesses who have appeared and submitted this testimony and information to the committee, especially this constitutional legal opinion, which we will certainly look at.

If Bill C-3 were amended to allow for the taking of DNA samples at the time of arrest for the primary and secondary offences, what would that do to Bill C-104? Would that have to be amended as well? Would it not make redundant the requirement for a warrant under Bill C-104 and all the necessary procedures: there must be a sample at the scene, there must be reasonable and probable grounds to believe this individual was involved?

Mr. Scott Newark: No, sir. What it would do is simply serve as a supplement. You could easily have an individual, for example, who had not been charged with the previous criminal offence, or to whom Bill C-104 would still apply...that the police had grounds to believe that individual met the criteria set out in C-104 in section 487.05. It would be independent of it. What a DNA data bank does, whether it's done on conviction or it's done at time of arrest, is give you, for people who have already committed criminal offences, a bank of information you could then store against the sample taken at the scene. It would complement but not replace that which is contained in C-104.

Mr. Jack Ramsay: I don't know if that answers my question. It doesn't clarify it in my mind. If you have the authority to take DNA samples as fingerprints are taken, then why would there be any need for a warrant to take a sample?

Mr. Scott Newark: Because there could be circumstances where there were grounds to believe the individual was involved but he did not have a previous sample on record because of criminal conviction or because of having been arrested and then criminally convicted. That's the difference.

• 1005

Please don't misunderstand. If you have a properly constructed DNA data banking system in place, it's going to make it much less necessary to go out and get these kinds of warrants, because in our belief—and I think it's demonstrated by all the criminological statistical information—you're going to already have a pool you can compare it to. But there would still be a circumstance possible where somebody would not have their sample in the bank but would meet the criteria under Bill C-104.

Mr. Jack Ramsay: Okay. I'm not satisfied with that.

Cst William Donnelly: If I may help clear things up, right now, pursuant to the identification chromosome map, we can take the fingerprints of anybody under arrest for or conviction of an indictable offence, including dual procedure offences in Canada.

We also have the provision now, in section 47, for impression warrants. If we do not have suitable impressions on file, we can apply to get a warrant to compel that person to provide fingerprint impressions. Each one is not exclusive of the other.

I may never have committed a crime, therefore my fingerprints may not be on file. However, I may be the prime suspect in a crime being investigated by the police. They may not have enough grounds to arrest me, but they may have enough grounds to compel me to provide a set of my fingerprints, by way of a warrant, so they can continue that investigation and compare it. If those fingerprints then match those at a scene, it will now give the police reasonable grounds to believe I've committed the offence; therefore they can now arrest me. Upon arrest, I will then be brought in. At that point the Identification of Criminals Act comes in and I would then be subjected to the provisions of that, my fingerprints taken and then stored to the national data bank.

Simply because they have the ability to do it upon arrest, they may still need to obtain it prior to arrest in order to give them the grounds for arrest. That's what the DNA warrant section does in a lot of cases.

This person's DNA may not be on file already. They may never have been convicted of an offence. Even if the bill is amended so that we can take it pursuant to arrest, we may not have enough grounds to arrest at the time. We may have enough grounds, however, to apply for a warrant to compel that person to give their DNA.

Mr. Jack Ramsay: Okay, thank you. I listened to Neale Tweedy's testimony with great interest and concern. Nevertheless, it is not, in my mind, the unsolved crimes issue that would be dealt with in terms of priority, although it's very important to solving that crime. What is so important, which I think this committee must recognize, is the protection of life that this would provide.

We've heard testimony before that had this bill providing the proper authorities been available, perhaps lives could have been saved in the Clifford Olson situation and in some of the other cases where it is clear that an individual is involved in these types of offences and yet individuals continue to lose their lives at their hands because the police do not have enough authority to obtain the type of evidence that would bring them into custody and provide the kind of protection that I think everyone on this committee would like to see provided.

Our responsibility is to strike a balance in every piece of legislation, particularly when dealing with the intrusive nature of a bill like this. When I look at this bill and I look at the possibility of the committee recommending amendments that would allow for DNA sampling at time of arrest, for primary and secondary offences, I look at the downside. What possible downside is there? Could that practice lead to a miscarriage of justice? Could that practice hurt an individual, or be injurious to an individual? I don't see that.

If that is not the case—and I want anyone who has a comment on this to comment—what is the justification for not including that authority, which is to take a DNA sample at the time of arrest, for those specific offences?

• 1010

Mr. Scott Newark: You're probably asking the wrong people.

I made a reference earlier. I'm unaware of any instance of an allegation about a sample being taken by law enforcement officials and being put to improper uses in the sense of DNA testing.

Mr. Mancini, I think, when the minister was here, or when one of the other witnesses was here, was asking about the nature of the penalty involved for that kind of misuse. I remind the committee again that during the consultations we were not the only group, but one of the groups, that specifically recommended making it a crime.

There are limited things that you as parliamentarians can do in relation to passing laws, and one of them is to recognize that something is wrong and therefore make it illegal. In fact, with this one, you're going to go all the way towards making it a crime, and we say deservedly so.

But there is nothing we can see that justifies wilfully ignoring the benefits obtained from this by not doing it pursuant to the Identification of Criminals Act.

Mr. Jack Ramsay: I have one final question, and I want to pin you down on this. We're talking about money, the money to create the bank, and of course the government has priorities. I'm asking you for your priorities. Would you sooner see money spent on a DNA bank or would you sooner see money spent on a firearms registration system?

Mr. Scott Newark: Can I answer?

A voice: Oh, oh!

Mr. Jack Ramsay: That question has been asked before.

Voices: Oh, oh!

Mr. John McKay (Scarborough East, Lib.): Yes. I was going to ask that question.

The Chair: Scott.

Mr. Scott Newark: Actually it's an easy question.

Mr. Jack Ramsay: It's a legitimate question.

Mr. Scott Newark: It's an easy question. I'd like to answer it in two different ways, if I may.

When we first started talking about this with Mr. Gray as the Solicitor General, we wondered about the costing priority issues. As I think you know, we spend a little over $11 billion a year, in public money alone, on the criminal justice system.

In my experience—and I think I speak for everybody sitting at the table—there is no better investment we could make in terms of public safety, public confidence and public integrity, including the exoneration of those people who are inappropriately charged or suspected, than a properly structured DNA data bank.

Our support of Bill C-68, the gun control bill, was given, from the very beginning, out of the recognition that we believed there was a public benefit to be gained from a universal registration system of firearms, and we still maintain that belief. The benefit to be obtained from that, however, pales in comparison, in our judgment, to the benefit to be obtained from a proper DNA data bank system.

Mr. Jack Ramsay: But you can't compare the cost. We're looking at over $100 million just to get the firearms registration thing off the ground, and what are we looking at for a data bank? I think the figure of $5 million for a data bank was kicked around.

Mr. Scott Newark: I believe the figure of $5 million, however, is based on the rather marginal selection of samples that are contained in Bill C-3. It would certainly be more expensive if the bank is broadened as we suggest. It is, however—and again, I presume that I'm speaking for everybody here, because we've had the discussion—a far wiser investment of money to do it for the DNA data bank. Frankly, the government should do both.

Mr. Jack Ramsay: But in terms of cost priorities, the cost of a DNA data bank system pales in significance compared to the cost that has been estimated for implementing Bill C-68—

The Chair: Okay. That's your last question.

Mr. Jack Ramsay: And that's my last question. Thank you for your remarks.

The Chair: Neal?

Mr. Neal Jessop: Do you want us to answer that?

The Chair: Sure, if you want to.

Mr. Neal Jessop: I think, Mr. Ramsay, that the people who sit here feel this way. We supported the gun control legislation, as you know, and with the government we made significant changes to it to adapt it to the Canadian public. And we think that it'll work. We think there are boundless savings to be had, in terms of saving lives, with the gun control legislation, particularly for those of us who work in urban centres. We also think—and I think Scott just said it—there is an incredible saving to be made in terms of lives with the proper DNA legislation. I'm sorry, you know, but we don't attach dollars to those sorts of beliefs.

We think we did the right thing and you folks did the right thing on gun control legislation. We also think you can do the right thing here, and, believe me, when we all go away at the end of the day, if it's the way it should be I think we'll take that long past our present occupations.

• 1015

The Chair: Thank you.

Mr. John McKay.

Mr. John McKay: I was interested in your comment that you would even be prepared to fund a Supreme Court reference.

The Supreme Court likes to answer a specific question or questions. Do you have in mind the specific question or questions you might ask?

The Chair: I thought you might have some questions about references now.

Some hon. members: Oh, oh!

An hon. member: He's writing.

[Translation]

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I have a very specific question.

[English]

The Chair: Go ahead, John. I'm sorry.

Mr. John McKay: Maybe Mr. Bellehumeur could instruct us.

The Chair: Oh, you've lit the fire now. We'll be doing guns and unity and everything here. This is the Canadian Police Association, gentlemen, and we're doing DNA.

[Translation]

Mr. Scott Newark: Ask a question. That's a good idea.

[English]

Yes, sure. I'll give you, if you'd like, by 11 o'clock, the exact wording of it. I think Tim probably has it reasonably close in relation to the constitutional sustainability of taking of DNA samples by methods defined in section 47 of the Criminal Code at the time of arrest, pursuant to the Identification of Criminals Act. Whether that is sustainable under the Canadian—

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): And whether international law applies, and which prevails.

Mr. Scott Newark: I was going to go one step... I think we could probably do that up pretty quickly. I don't think there'd be much difficulty or much disagreement.

Mr. John McKay: You see it as a fairly narrow question, then.

Mr. Scott Newark: Yes, sir.

Mr. Nick Discepola: If you get that question in on time, you might get an answer in six months, too.

Mr. Scott Newark: By 11 o'clock.

The Chair: John, do you have any...?

Mr. John McKay: I think he's right. It is a narrow question. I'm just curious as to whether he's formulated it in his own mind.

The Chair: Okay. Mr. Bellehumeur, and then I think Mr. MacKay.

[Translation]

Mr. Michel Bellehumeur: On the matter of referral, we will await the decision of the judges of the Supreme Court on the constitutionality of referrals to the Supreme Court.

Joking aside, the Firearms Registration Act was mentioned a little while ago. If the ultimate aim is the protection of life, as I think it is, and if this type of priority should be spelled out to the government, the first recommendation should concern use of DNA. This is what I believe, even if I was one of those who fought for Bill C-68.

That should be the government's top priority. After that, it could deal with firearms registration. I think it should be done, but from doing it to saving lives...there may be an argument that I haven't followed to its logical conclusion, but I do think firearms should be registered.

Having said that, a question remains. I will read the text of your legal opinion carefully, because I have always asked myself this question. This is not the first time I have heard it suggested that samples be taken, not only from inmates but from the accused at the time of arrest. In my mind, these are two very different things.

I am not too worried about asking an inmate, someone who is incarcerated—you gave the example of Clifford Olson who is in prison—to give a physical sample, even in the free and democratic system we live in. By physical sample I mean a sample of saliva, blood or hair. I have very little problem accepting that. However, if you are saying that this should be done when an individual is arrested, an individual presumed innocent until proven otherwise under our legal system, I will explain the problem I have with that.

You gave the breathalyzer test as an example. As a "country" lawyer—I have never worked in a big city, nor have I dealt with any cases of the kind the gentleman mentioned earlier—I consider that blowing into a breathalyzer is not at all the same thing as giving a sample of saliva, hair or blood.

Therefore I will read the legal opinion which, I imagine, was written taking all that into account, and taking into account the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms, which are very similar.

• 1020

In my mind, there is only one difference in the nature of these requirements. I hope this legal opinion convinces me to agree with you on that, because I do agree on Bill C-3. However, I want a bill that will not be contested, a bill that will reach its goals. I agree, I have a problem with your argument, with going as far as allowing police officers to take samples of saliva, blood or hair from an individual at the time of arrest, even for a serious crime. In the system we live in, I am afraid of abuse; I am afraid of the use that may be made of it; I am afraid of a lot of things.

Here again, I wish to be clearly understood: in the case of inmates already found guilty, I agree with you fully. If we are able to resolve other cases using DNA, I agree. However, I find it very dangerous that someone, an ordinary person, arrested for a very serious offence according to your information, but not yet found guilty, be asked for samples of hair, saliva or blood for the purpose of obtaining a DNA sample.

Mr. Scott Newark: I am not the one who said that it was all right to take a sample at the time of arrest; it was the Supreme Court.

Now, with regard to what the Bill says about fingerprints,

[English]

they are the ones who have sanctioned.... It's in the opinion; it will be ready tomorrow as well in French. It is they who have looked at all of the different principles involved and said on balance it is justifiable to do it at time of arrest. We've had the discussion, I think, even before about why the logic of that is...the people who we're going to miss. We appreciate that there is this sense that we differentiate before a conviction or after a conviction. But it is in understanding what's at stake if we don't take it there, of what we're going to miss, that the Supreme Court literally reached the conclusion that it was justifiable.

I just urge you, when you read the opinion, to keep in mind that where we got the idea was from reading the Supreme Court of Canada decision. God knows we don't always agree with the Supreme Court of Canada in the decisions it makes, but on this one we happen to think they're right.

Cst William Donnelly: If I may, the same arguments can be applied to fingerprinting. I always go back to that because it's something we do now every day.

Say your house and your family happen to be the victim of a break and enter in which the suspect who broke into your residence left his fingerprints behind at the point of entry, and this person who committed the crime does not have fingerprints on file. He has never been arrested before. This individual now commits a mischief downtown in the same city, breaks a window and he's arrested by the police. If we're only going to fingerprint people because of crimes of theft and possession of property to investigate those relating to break and enter, the logic in that says it's only a mischief and we shouldn't fingerprint him. But by fingerprinting him for mischief, a dual procedure offence under the Criminal Code, we're allowed, and sanctioned too by the Identification of Criminals Act, to now take that fingerprint we took from him upon arrest for the mischief and compare it to the fingerprint left behind at the break and enter at your residence. It's not the same offence, yet we can apply one to the other.

We've had homicide cases...people who commit homicide aren't always the serial offenders you've heard about today. There's a case I'm aware of out of Toronto where a young woman was murdered in her residence in 1972. Fingerprints were left behind in such a location and in such a manner that the police officers investigating the crime were certain the fingerprints left behind had to have been left behind by the suspect. They were compared to her, the family, room-mates, things of that nature, and all these people were excluded. That was in 1972. In 1972 and 1973 the Metro Toronto police compared that fingerprint manually to all the fingerprints in their local database, with no match. They sent those fingerprints to the RCMP, the holders of the national fingerprint database, to compare that fingerprint to theirs on file—no match. There was no match to anything in the database.

We come forward now and the crime is not solved; this person continues on with their life.

• 1025

In 1986 I believe the RCMP established AFIS for the first time, the automated fingerprint identification system, which allows all the fingerprints now to be stored in a computer data bank. This makes it a lot easier to search large volumes in shorter periods of time.

The fingerprint is again submitted to the RCMP, it's searched under the AFIS system in the national data bank, and again, there are no responses, no hits.

In 1990 or 1991 Metro Toronto police acquired their AFIS unit, which interfaces with the RCMP national data bank. They resubmit that print as one of the first prints they put into their AFIS system for a search. By now the technology has changed, though, so when that fingerprint is submitted for a search, it gets compared to the national data bank, no hits are made, but now it gets put into something called an unidentified latent fingerprint file. These are crime scene impressions that have not been identified and are now going to be compared against all data coming into the data bank. So for every person across Canada who is arrested and has their fingerprints taken, when those prints are put into the system, they're being searched against that unidentified latent fingerprint file.

In 1992 a gentleman in Halifax, Nova Scotia, far removed from the original crime, is arrested and charged with impaired driving—not a crime of violence, not a crime even associated to homicide. He's arrested for that, he's fingerprinted, his fingerprints are sent to the national data bank, and when they are put into AFIS, the computer makes the hit and sends that information to Toronto. Toronto now goes and makes the arrest, almost 20 years after the offence.

That's why we're saying that taking somebody's fingerprints, taking a couple of hairs, or taking a swab from the inside of their cheek are all things that have the same like-minded intent. There's no difference.

[Translation]

Mr. Michel Bellehumeur: The aim is the same, yes. The aim is the same, but there is a difference. It must be acknowledged that there is a difference between a fingerprint or air that comes from outside and passes through the lungs, and hair, blood or saliva. There is a difference. The objective is the same, I agree, but there is a difference with regard to application of the Charter, I am absolutely sure. The judges certainly didn't say there was no difference.

I will read their legal opinion carefully, because, if I understand correctly, you are extending its scope. The legal opinion concerns "impairment", and a breathalyzer test prior to conviction. Am I wrong, or does it deal with something else?

[English]

Mr. Scott Newark: No, no. Since the DNA legislation has come into effect, there are two cases in here, dealing with the sample you saw, that have held that process to be constitutionally valid.

[Translation]

Mr. Michel Bellehumeur: Before arrest or after conviction?

Mr. Scott Newark: No, after.

Mr. Michel Bellehumeur: Therefore, after conviction.

Mr. Scott Newark: Yes.

Mr. Michel Bellehumeur: It makes a difference.

[English]

Mr. Scott Newark: At the same time, the Supreme Court has also said that the taking of the samples pursuant to fingerprinting at the time of arrest is constitutionally valid. So what we're suggesting.... I guess I'd put it this way: if it's wrong, then the whole bill is unconstitutional—Bill C-3 is unconstitutional and all of Bill C-104 is unconstitutional.

I'm quite confident about the opinion. At the very least, why don't we go find out?

[Translation]

Mr. Michel Bellehumeur: I have not read it and I do not claim to be an expert in the field but, on the basis of my current knowledge, the judges of the Supreme Court have ruled a number of times on breathalyzer tests. They have said it is constitutional to do these tests at the time of arrest.

They have also ruled on the timing of DNA testing after conviction. They ruled on that too. Even if, to my knowledge, they never ruled directly,—I could be wrong—, in favor of taking samples of blood or saliva at the time of arrest. Never, it seems to me, have the judges of the Supreme Court said this could be done under the Constitution.

Mr. Scott Newark: That's true.

[English]

They have ruled it to be valid when it's taken pursuant to the warrant on Bill C-104 before a conviction. They've ruled that to be valid. What they said in the case called Stillman, which you'll see in here, is that in the absence of statutory authority—in the absence of your making a law—you can't take it. It's not up to the police to decide they're going to go and take the things you saw here. What that tells both Mr. Danson and me is there's only one group of people who can say it's valid: you. That's the point.

[Translation]

Mr. Michel Bellehumeur: Yes, but it must be done responsibly. You came here to ask for that, but that doesn't mean you'll get it, not to me in any case, especially if there is fear of abuse or belief that the ultimate aim will not be achieved.

• 1030

It's like what happened with the Firearms Registration Act. We went along with you because we were under the impression that, in the final analysis, it would help. This is not the first time you have appeared before the Committee asking for things you don't receive in full. This is only normal; it's the system. I think that, in this way, a certain balance is reached.

If I sign my name to a bill along the lines you are suggesting, I really want my agreement to make it possible for you to reach the goal you seek. However, I am not sure the system will be the winner if we go as far as you suggest. Maybe.

At present, I can go no further than that. Maybe you will convince me. Maybe the legal opinion I have here can do it. Maybe other witnesses will give further details that can convince me. However, today, it seems to me dangerous to climb out on your limb and agree that a sample of hair, saliva or blood may be taken from a person at the time of arrest, even for clearly determined crimes.

[English]

The Chair: That will be the last question from Mr. Bellehumeur.

Mr. Neal Jessop: May I just briefly reply?

The Chair: Sure, Neal.

Mr. Neal Jessop: Mr. Bellehumeur, that's precisely why we're here: to convince you, having seen these demonstrations, that there is no practical difference in taking your genetic fingerprint, and it is no more intrusive than taking your actual fingerprint. From our side of the table, we've made the best case we can, and we hope you accept that.

Sgt Jon Netelenbos: Madam Chair, from a police officer's point of view, one issue here is that you are presumed innocent. Even if there's a matching fingerprint, the presumption of innocence remains. If there's a match in DNA, the presumption of innocence remains.

The Chair: Thank you.

Det/Sgt Neale Tweedy: If I may comment, I don't understand this abuse that we're discussing in the hypothetical. I've been dealing with DNA cases since 1988, and unless you're a geneticist or a biologist, a lay person cannot understand it. To me as an investigator, it is only a series of numbers and letters on a page. So the potential for abuse from a law enforcement perspective just doesn't exist.

The Chair: Detective, you'd be interested to know that Dr. Young from the Centre of Forensic Sciences made that point as well: really all you have when it's all done is a profile, and that's what it's used for. The further problem becomes what happens to the sample, because the sample can be used for something else. But we'll take it one step at a time here.

Mr. Bellehumeur, go ahead.

[Translation]

Mr. Michel Bellehumeur: Yes, that too. Today, technology is advancing so quickly that we can, for example with cloning, do all sorts of things.

How do we know that tomorrow, using data banks or in some other way, we will not be able to produce DNA at the scene of a crime? I don't mean that you will personally do it, but I think that things must be kept in perspective when a bill is being adapted.

This is what I mean when I say that it seems dangerous. Today, we know the use you can make of it, but what will the situation be tomorrow or in ten years? We may be able to go further. Tomorrow morning, why not order that DNA testing be done on all newborn babies? In twenty years, we would have everyone's DNA. What's stopping us right now? If we take your argument to its logical conclusion, why don't we adopt a bill specifying that all children have DNA testing at birth? In fifteen or twenty years, when these children have grown up, there would be a universal data bank. Is that the society we want to build?

I am asking myself questions and thinking aloud. What I am asking of you today is extremely important. It may influence the judicial and legal future of Canada and of Quebec. At least, that's what I think.

Mr. Scott Newark: I will allow myself to remind you of one thing.

[English]

You asked what could stop it. You. You. You, members of Parliament, the law. If you heard us coming here, asking for this, that's what you should say: that it's unreasonable, it's wrong. Have you heard us at any time ever suggest anything like that?

Mr. Michel Bellehumeur: No.

Mr. Scott Newark: I would suggest to you that it is wrong to say this is meritorious on its face and everything else, but because somebody might sometime in the future do something wrong about it, we're going to throw out the benefit. If that's the case, you should throw out every law that's passed. You should throw out the entire Criminal Code. What prevents it is the good sense, the good judgment, of the Canadian people who elect people to Parliament, and the law. That's what prevents it.

• 1035

The Chair: Thank you, Mr. Bellehumeur.

Mr. Opposition MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I want to start by thanking you for being here. I think Mr. Newark's description of your experience has been demonstrated; it resonates.

I want to say I am very impressed with all of what you have said, but I think the timeliness issue is what is extremely important here. The reference made to the saving of lives and the proactive nature of this legislation in helping the police do their job is something that can't be overstated.

I don't agree with the reference to sending this to the Supreme Court for an opinion, and I'll tell you why. I think in this country we're suffering from charter constipation. I think we're going to the Supreme Court for things we already know the answer to. Let's face it. This is going to wind up in the Supreme Court. Let's not kid ourselves. As sure as the sun comes up tomorrow, there's going to be a lawyer who will challenge this. That's what lawyers do.

You ask about the cost or the abuse of this legislation. The abuse is going to be on criminal lawyers' billable hours, because this is going to bring cases to fruition a lot quicker. It is going to put people at the crime scene.

It's too fundamental an issue, in my opinion, to wait around to see what happens. We should be moving forward with this as quickly as possible, because it's inevitable. This is going to happen. It's happening all over the world. To fight technology is regressive, it's ridiculous, when we're talking about human lives.

I have a couple of questions that come from other witnesses and their concerns. I would be interested in the police perspective on the reliance, in terms of defence, on the issue of consent, because DNA is going to take away some of the argument of “I wasn't there”. How do you see that resonating in the courts in terms of police officers investigating, taking statements, falling back on this defence of consent?

Mr. Neal Jessop: Mr. MacKay, it's precisely why we're asking for the legislation. To people like us, who have been in the business for several years, the word “consent” is often easy to use and difficult to prove. For example—and I hope I'm on target with your question—we've attempted in the past to use short cuts, unsuccessfully. We still hear police officers say “Why do we need a warrant if we can get the person's consent?”

In relation to your question, lawyers have ensured their right to a Mercedes Benz by dealing with informed consent. Informed consent is simply that. Was the person you're talking to to get this consent, which you write in your notebook and have them sign, sufficiently informed of the ramifications of doing what he was going to do? Mr. Tweedy and I and others have spent hours justifying that on the stand.

That's precisely why we're asking you to enshrine this in the law. If you give us lawful authority to deal with this situation and we obey that lawful authority and don't go outside the bounds of that authority, then we don't have to deal with the consent issue.

Mr. Scott Newark: I'd like to respond to the issue about the reference.

I refer to it as charter angst. I haven't heard “charter constipation” before, but I think the sentiment is potentially the same thing. We had a discussion about it in relation to Bill C-16 and the notion of the reality of the court, in effect, given its role under the charter of rights intruding more and more into the legislative field.

• 1040

In my dealings with the Department of Justice—and I do an awful lot of work with the Department of Justice—you come up against this sort of shapeless form, like something out of an old episode of Star Trek or something. You're aware that it's there and it's brought up all the time that there are charter concerns.

It's the reason we suggested in the very beginning to ask to have the minister produce whatever the legal opinion was that said there was a charter problem with this. I don't know whether you have it yet from the departmental officials, but it's the reason we went out and got one, apart from simply the opinion of myself coming here.

Please don't misunderstand; I think you should make the amendment forthwith. The point is that when you're dealing with an obstacle that has that sort of illusionary quality, like a charter problem, we figured what we'd do is call the issue and say, fine, let's go to the ultimate place, which is the Supreme Court of Canada. I don't think it's necessary at all, and you're quite correct; virtually anything that is effective in law enforcement today will be challenged under the charter. We all have to get used to it and deal with it, but not be afraid of it.

Mr. Peter MacKay: In terms of the ability of the police to utilize this technology, what's the timeframe for getting a data bank up and running?

I also question the use of the DNA evidence nationally, because I know there's sometimes problems with information exchange presently when it comes to fingerprints, when it comes to CPIC information. Even under our existing system, that information isn't always available to police officers coast to coast.

Mr. Neal Jessop: I don't know whether I can answer that question any better than anyone else here.

The real crux of the situation in relation to your first question is that we have to start. It is a large undertaking. There are thousands of fingerprints taken in this country every day, and people are added to the fingerprint database by the thousands every day.

We feel, and our experience would dictate, that the RCMP has done a fairly adequate job of protecting that information and producing it. In our day-to-day work, we get the results back from the data banks correctly.

For the most part, I think the real problems in relation to the Canadian police information system is a people problem. For example, they're not putting summary conviction offences on a person's record nationally. That's very dangerous, because some of the lesser offences that would show a tendency to the most serious offences are summary, and therefore we don't get the good picture that we should.

That, in particular, is a resource problem, and that's a problem that has to be addressed. I've gone through the horrors of not doing this right, with places like the Detroit police department, which actually has and can prove that it has the same set of fingerprints under two different names and nobody has ever discovered it.

When you get into those kinds of situations where you don't provide the resources, then you can seriously damage an investigation.

Mr. Scott Newark: I would like to add one thing.

I was involved in a consultation with the Solicitor General's Department on the National Police Services, which is essentially the entity run under the administration of the Royal Canadian Mounted Police for maintaining things like the criminal information services, forensic identification. It's where the DNA data bank will ultimately be run, whatever its structure.

It's in need of a major overhaul. That is an issue that I suspect is going to come before you as well, frankly, in one form or another. It needs upgrading; it needs some money put into it.

I think if there's any one lesson that has come out in Mr. Justice Campbell's report, it is the danger that occurs in law enforcement when fragmentation sets in and there's this multiplicity of jurisdictions. That's how the cracks are created.

The name of one case is mentioned here: Bernardo. I want to give you one other example, which Neal actually has in a clipping, that accentuates why it's important that the samples be taken on arrest. It's a big country; we have a problem with expenditures and returning people on warrants. In British Columbia, this is a particular concern. For some reason, people who flee in Canada tend to want to go to British Columbia.

• 1045

I'll give you a factual situation, if I might, that I think illustrates the point. Let's say somebody is picked up in Ottawa on a break and enter. Unbeknownst to the authorities, he is also—and as you've heard, that potential is more than just illusory—actually responsible for two other rapes in which there is trace evidence. As is the case in our system, that individual will almost certainly make bail; that is to say he will be granted a release.

The way the bill is drafted right now, if he goes to court, he gets bail, we don't take his DNA, we don't know anything about the guy other than he's charged with a break and enter. He knows, however, that if he comes back there's a reasonably good likelihood he's going to be convicted, he's going to get his DNA taken, and he's going to get identified on the two rapes.

At my last look, and it's been awhile, we have about 60,000 people a year convicted of failing to appear as a criminal offence. I'm sure, Mr. MacKay, you know, as do others who practise criminal law, that this is one of the most frequently dealt-off offences, where there's a host of other offences. So those are just the convictions. That's how many we have already.

This individual fails to appear because he knows what's going to happen to him, and takes off to British Columbia. Let's say about a month later he's picked up by the police in British Columbia. They query the system and find we've already got a warrant for him in Ottawa for when when he didn't show up on the break and enter. So B.C. calls and asks if we want this guy. The answer in 99.9% of the cases will be no, it's too expensive.

The situation is called non-returnable warrants. The Attorney General of British Columbia, Mr. Desongs, and the Federation of Canadian Municipalities, have complained about this for quite awhile, about the reality of it and how it particularly hampers jurisdictions where people tend to flee to. When you have a circumstance like this in relation to DNA, this is how it is going to be compounded about that.

So it's another reason for taking at time of arrest, and what I would suggest in regard to this whole area of DNA data banks is it must be a nationally administered system, it must be properly federally funded and not downloaded onto the provinces. That may involve making some priority choices about how we spend dollars, but again, there's nothing that will give a bigger bang for the buck in the sense of public safety, and exonerating people wrongfully charged.

The Chair: One more question, Mr. MacKay.

Mr. Peter MacKay: I have a question for you that may address this. I'd like to run this by you. Make it a condition of release, so it's coming part-way between.... I know ideally you'd like to have it at the time of arrest, but for designated offences it could be made a condition of release at a section 515 bail hearing, saying, you're charged with this, you're not getting out of here without your DNA being taken again. It fits part-way in between.

How do you react to that?

Mr. Scott Newark: Funny, I thought about that myself and mentioned it. Obviously, from our perspective taking it at time of arrest is better, and if it's constitutionally sustainable we should do it.

Having said that, the thought occurred to me as well as to authorizing it under bail conditions—authorizing it, for example, under grants of parole. Right now we authorize the parole authority to say to somebody, you have to pee in a jar every couple of weeks for a urinalysis test, and it's something that's been passed by Parliament and authorized by the courts. There's also blowing into a breathalyser on a conditional release. What better indicator could there be of the fact that I'm planning to lead a crime-free life, I've learned my lesson, I'm rehabilitated?

The long and the short of it is that it would be a vast improvement over what's in the bill right now, but there's no justification for not doing it at time of arrest.

Mr. Peter MacKay: But your first recommendation is that it should mirror the Identification of Criminals Act?

Mr. Scott Newark: Yes.

Mr. Peter MacKay: Also, on a point of clarification, is the police association saying there should be the taking of DNA from all those presently incarcerated, or those within the designated offence categories?

Mr. Scott Newark: The recommendation is all people in federal custody, although I can at least understand, I think, the logic of why you would confine it to designated offences. But anything is better than the 125 dangerous offenders and two-time rapists.

The Chair: Thank you.

Mr. Neal Jessop: I have one thing to add in relation to that suggestion you made. If it was ever to be considered, and I'm not saying it should be because it's not what we want, you have to remember that even to do that you have to statutorily constitute it. You can't leave these sorts of things to negotiations between crowns and defence lawyers and, in most cases, justices of the peace who don't have the knowledge that they need in that area.

Mr. Scott Newark: Plus Stillman says it would be unconstitutional; this was my reading of Stillman. It makes it very clear that unless it's done by statutory authority it'll be struck down.

The Chair: Thank you, Mr. MacKay.

Mr. Ramsay has a brief question and then I want to go to Mr. Discepola, who has been quite patient.

• 1050

Mr. Jack Ramsay: In your brief you are recommending that proposed section 487.04 be done away with, removed. That is where the individual can appeal the taking of a DNA sample. In conjunction with that, we see these levels of appeals springing up all over. In the YOA amendment the reverse onus is another appeal process. In the faint hope clause there was a similar type of appeal process. Just this morning I heard a sexual assault case was thrown out in B.C. as a result of the Askov decision, because of delay.

What is the basis for your recommendation to remove this? Is it simply that this is redundant or it is simply going to create another delay, or both?

Mr. Scott Newark: Both, but also a couple of other things. It's predicated on the notion that we think they should be dealt with in the same way as fingerprints, and we don't authorize the taking of appeals from fingerprint-taking.

It also reflects, though, the sense that has crept into our legislation over the last five, six or ten or 10 years or so—and I make this same point in relation to the exemptions to the mandatory taking for the primary and secondary offences—that somehow it would be better if we left it to more specialized, more knowledgeable people to make decisions like this, people called the courts, the judges—some elite of people who would know better about this.

With respect, there are thousands and thousands of judges. There are only 301 of you. Judges are actually just appointed. You are elected. You bring the wisdom of the people of the country, who have to go and vote for you.

With respect, the people who should be deciding as a people whether this is the way they want it to be done are you. If you think it's appropriate that for somebody charged with or convicted of these kinds of offences that information should flow, then with respect, we don't think that the courts should be in a position to say, well, we don't agree, or that there should be an appeal of that process. Also, administratively, it's going to be a nightmare.

Let me conclude on that point by saying we had suggested for the minister—and this is not to be difficult, but perhaps even Mr. Discepola is aware of it.... When we look at the exemptions crafted in there at proposed subsection 47.05(1), where the court has the discretion.... I have sat and looked at that for hours. I cannot think of a factual situation that would justify exempting somebody on those primary designated offences, or even on the secondary designated offences. It causes me real concern that we may have drafted something and it is well-meaning but no one is sure what it really is supposed to mean. If experience tells us anything, it is that the courts will find a reason for it. If it's your intention that it not be there, then don't put it in. Take it out.

The Chair: Mr. Discepola.

Mr. Nick Discepola: What would you do with the samples if you were able to take them at the time of arrest? What are you recommending?

Cst William Donnelly: I'm probably the only person here who works with the Identification of Criminals Act on a daily basis, the same thing as we do now with fingerprints. When somebody comes in, on arrest—

Mr. Nick Discepola: You keep them?

Cst William Donnelly: We keep one set of fingerprints on file, only because we have the capability to do it. Because we don't have the capacity to analyse or to establish a DNA profile based on a biological specimen, we would then send that to a centre that would give us basically a hard copy, or a profile, based on that.

Mr. Nick Discepola: How long would you keep it?

Cst William Donnelly: That would be sent forthwith, just as it is—

Mr. Nick Discepola: How long would you keep the sample?

Cst William Donnelly: As long as it takes to package it and to air-dry it. It would be kept for 24 hours to air-dry it—

Mr. Nick Discepola: Let me be more specific. Do you get rid of it at proof of innocence, or do you still want to keep that sample?

Mr. Scott Newark: Oh no, destroy it.

Cst William Donnelly: Destroy it.

Mr. Scott Newark: In fact, to give it a larger answer, we will keep it as long as you tell us we can keep it.

Mr. Nick Discepola: So once the person is proved innocent you would get rid of the profile—

Mr. Scott Newark: Yes.

Mr. Nick Discepola: —and the sample?

Mr. Scott Newark: Yes.

Cst William Donnelly: Just like fingerprints.

Mr. Nick Discepola: Then I have a hard time with some of the examples you've given with fingerprints. We're 20 years after the fact, somebody committed a B and E, and now the only way you'd be able to match up the two is if you had the fingerprint on file. Even if we were to take the samples at the time of arrest, once you get rid of them when the person is proven innocent, it's not going to help you solve those types of examples that you give.

• 1055

Cst William Donnelly: If they're proven innocent. But with fingerprints, if that suspect is arrested for a break and enter and there's—

Mr. Nick Discepola: Well, if they're taken at the time of conviction, you're going to have it in your database anyway, so I don't understand.

Mr. Scott Newark: Not under this bill.

The Chair: Nick, let them finish. I know we're getting excited here, but let them finish the answer.

Bill, did you want to finish the answer?

Mr. Nick Discepola: Well, you're going to cut me off in two minutes.

The Chair: No, I'm not going to cut you off.

Cst William Donnelly: With fingerprints, we've been using the words “pursuant to arrest”, which is kind of erroneous. We actually take them pursuant to being charged. There's a higher level required for a charge to be laid than there is just to effect an arrest. The charge and information have been sworn out, a justice of the peace has reviewed that information independent of the police and agreed that there's information substantive to the charge, and they are then indicted, or formally charged. Only then can we take fingerprints pursuant to the Criminal Code. That's been a decision by the Supreme Court.

We just can't take it pursuant to arrest, saying, “We would like Paul Bernardo's DNA, so we're going to arrest him, even though we don't have the grounds. We'll arrest him, take his DNA, and then release him.” We can only take that if there's information to lay a charge, to charge him with that offence.

Once that's taken, if there is a conviction, the fingerprints are kept on file. As long as there's a conviction and we've legally obtained the fingerprints, they're kept on file indefinitely. The date we use is actually 99 years plus a day from conviction. It guarantees that the person is no longer active.

Some hon. members: Oh, oh!

Cst William Donnelly: Well, we're a little conservative.

But if the person is cleared of the crime—if you've been charged with impaired driving, your fingerprints are taken, and the charge is then dismissed or withdrawn—these fingerprints are purged from the system. They're taken out.

Mr. Nick Discepola: So how does it help solve a crime in the future if you don't have the DNA sample at the time? I don't see the benefit of having it at the time of arrest.

Cst William Donnelly: Well, prior to it being purged, we still entered it in and compared it to everything in the unidentified latent fingerprint file. The fingerprint was already compared. It was already submitted to the RCMP, put into the national data bank, and compared against the unidentified latent fingerprint file. If you then go to court several months later and the case is cleared, your fingerprints are purged. But prior to that court date, had those fingerprints matched something in the unidentified latent fingerprint file, you would be charged with the new offence based on that match.

Mr. Nick Discepola: You used the example that 20 years later, because of a fingerprint being on file and new technology, you were then able to hit a match. In the case of DNA, as we establish it here, even if you were to take it at the time of arrest, you wouldn't have that hit.

Mr. Scott Newark: Yes, you would, sir.

Mr. Nick Discepola: But the profile would have been gone.

Mr. Scott Newark: No, no, you would have it, because the DNA that was in there was not an offender DNA. It was a sample at the scene. It was a trace sample. Let's say it was a murder-rape. It was semen that was left there. The comparison was crime scene.

Mr. Nick Discepola: With the crime scene index, you still have that option now to keep that sample.

Mr. Scott Newark: Right, but you have to have something to compare it to. That's what the value is in comparing it 20 years later, when somebody comes through the door on a break and enter. You take it at arrest when he's coming through the system as opposed to not taking it, because he knows he's going to get done for the murder-rape 20 years ago, so he's not going to show up under the system there now to be convicted and get his sample taken. He's not going to show up. We're going to lose him.

Mr. Nick Discepola: What we're trying to do is strike a proper balance. If you knew for a fact that by changing the legislation to accommodate your request, which is that it be taken at the time of arrest, it would have charter risks, what would your druthers be, to abolish the legislation totally or go with it as is?

Mr. Scott Newark: Charter risks or charter failure?

Mr. Nick Discepola: It wouldn't withstand the test.

Mr. Scott Newark: Well, there's no point in passing legislation that's unconstitutional. And no one has heard us say here, by the way, that you should invoke the notwithstanding clause.

Mr. Nick Discepola: No, only Quebec does that.

Mr. Scott Newark: Well, we haven't recommended that. If you remember, on the Feeney bill, some suggested that Parliament should actually invoke the notwithstanding clause. We said no. What we'd like you to do, however, is have the Department of Justice go and fight, to actually go into court and earn their salaries, to say this legislation is constitutional, to look at the opinions, to say it's sustainable. And we also have section 1 in our charter, which is an equal, valid part of the charter. But at least try.

We're quite confident that we're going to win.

Mr. Neal Jessop: We will never criticize anyone for having the courage of those kinds of convictions. What we object to is this conjecture coming from people who are not responsible in the justice system that says, well, because we had this idea or conjecture or something that was sent to us by aliens, we shouldn't really do the right thing.

• 1100

We'll live with the result from the Supreme Court. We've lived with the results of what Supreme Court judges have said for 120 years and we're willing to do that here. We're actually willing to take it on ourselves, at our expense, but what we're saying to you is this: don't prejudge the situation and put the wrong thing forward first.

Mr. Nick Discepola: But there's no DNA data bank in the world that would have prevented a Paul Bernardo...and I don't know why we use that case—

Mr. Scott Newark: Yes, you're right.

Mr. Nick Discepola: —because it sensationalizes it all the time. You shouldn't use that example.

Mr. Scott Newark: By the same token, there are hundreds of others. You're right about that one, because he had never come through the system on charge.

Mr. Nick Discepola: That's right. And even in this case, if you take DNA as an example, even in your own statistics you show that only 20% of offenders in CSC, out of 23,000, have a previous record—

Mr. Scott Newark: Excuse me—

Mr. Nick Discepola: —so even if you had it in a data bank, you wouldn't have solved all those—

Mr. Scott Newark: Excuse me, 23% have a previous—

Mr. Nick Discepola: Twenty percent have served a previous federal sentence. These are your statistics here.

Mr. Scott Newark: No, if you look at it, sir—

Mr. Neal Jessop: A federal sentence.

Mr. Scott Newark: You have to do a fair amount to get into a federal penitentiary in this country—

Mr. Nick Discepola: No, but I—

Mr. Scott Newark: Eighty percent of them, sir, had been previously incarcerated. That's 80%.

Mr. Nick Discepola: But for what kinds of crimes?

Mr. Scott Newark: Covering both—

Mr. Nick Discepola: But if we had no recidivism, we wouldn't need a DNA data bank.

Mr. Scott Newark: But even if the numbers and the percentages are correct... and I gather that somebody I recommended to the committee, Inspector Gary Bass, spoke about 600 unsolved murders. Even if we're talking about 30%, that's 180 unsolved murders in British Columbia alone. We would suggest to you, sir, that it is worth doing it right to get at that.

Mr. Nick Discepola: But the comment I'm making is that it's a great tool for solving crime and shouldn't be viewed as a tool for crime prevention.

Voices: Oh, oh!

Mr. Scott Newark: Mr. Discepola, my experience, and I give you this—and you heard a collective sort of response here—is from a courtroom. In my judgment, sir, one of the greatest deterrents for people who are predisposed towards the most serious crimes is the knowledge that they're going to get caught. That's what real deterrence is, and this particular tool is probably the best indicator to somebody who is inclined towards the most serious crimes that there's a very good chance—in fact, a much better chance—that he will now be caught. That's crime prevention!

Mr. Nick Discepola: Okay.

The Chair: Thank you, Mr. Discepola.

Mr. DeVillers, I'm going to give you the last word.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you, Madam Chair. I have just one short question about the point of asking for the amendment, that it be done at the time of charging, the way it is with fingerprinting now.

At present, in a case where someone is charged, fingerprinted and subsequently tried and found to be innocent, the system now uses those fingerprints. They go into the system and are used to cross-check for unsolved crimes, etc. In a case of the person ultimately being found not guilty at trial, the fingerprints are destroyed. So there's that period where an innocent person's fingerprints are in the system and are being used.

That's what you're asking for here. You're saying it's a justifiable encroachment—theoretically—of a person's rights if he or she is innocent and is ultimately found innocent.

Mr. Scott Newark: I have two points. We're the ones who actually recommended putting in, statutorily, the point about destroying the samples. And if a person has been found not guilty of the offence for which he or she has been charged, absolutely, the sample should be destroyed.

But presumably...and let's again say that we're talking about blood or semen in a murder or a rape. You have to use that qualifier of the word “innocent” a little more carefully then, because what they are innocent of, it would appear, is that particular offence. But for the other offence there is evidence that we now know they should have to answer for, like “How did your semen come to be in this particular location?”

Cst William Donnelly: It happens every day. If you were stopped by any police agency on your way here today for an offence that you weren't even given a ticket for, and there was an allegation possibly that you were driving improperly, when that police office takes your driver's licence and walks back to the car, a check is done, even though you may be innocent. That licence is run through CPIC to see if there are any outstanding warrants or if there is something we may not be aware of. That's done on a daily basis. It's done with your name, it's done with fingerprints, and it can be done with DNA.

The situation is such that if you're later cleared of anything and you were checked and the checks came through and they were clear, everything goes back. Nothing happens because of it. But it gives us a good way to catch those people who otherwise would fall through the system.

The Supreme Court of Canada has agreed with it. They said police officers could stop the drivers of motor vehicles for the sole purpose of checking whether the vehicle was insured or not and whether the person had a valid licence—arbitrarily, for no other reason. They basically said there's nothing wrong with just checking, and that's all we want to be able to do, to check to make sure. If you're cleared, then it is disposed of. If it matches, you have a whole separate issue to deal with.

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The Chair: Thanks, Mr. DeVillers.

Gentlemen, thank you very much. It's especially nice to see Constable Donnelly here. Thank you.

Const William Donnelly: Thank you.

Mr. Neal Jessop: Thank you.

The Chair: We'll rise until our next witness comes to the table.

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The Chair: Order, please. We will get back to work.

We now have, from Laval University, Professor Marie-Hélène Parizeau. We would like to welcome you, Professor Parizeau. I understand you have a brief to present to us, and then we will have questions afterwards.

[Translation]

Ms. Marie-Hélène Parizeau (Professor, Université Laval): Allow me to introduce myself briefly. I am a philosophy professor and I teach medical ethics and bioethics. I regret somewhat that philosophy attracts smaller crowds than policemen. It's a shame.

What I have to say is fairly simple. Essentially, I will simply talk about the values that underlie the Bill. As a philosopher, I will simply do an ethical analysis of the ultimate aim and methods used in the Bill. My analysis is neither legal nor political.

Practically speaking, there are different ways of doing an ethical analysis. I have opted for a utilitarian approach. Why? Because it requires consideration of long- and short-term consequences, it is analogous to a calculation of our interests. In everyday life, we are always asking questions like "What should I do? Is this a good idea?"

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Basically, we ask ourselves questions on the advantages and disadvantages, individual or collective, of an action. It is from this point of view that I will analyze the Bill.

What is involved in a utilitarian approach? You try to weigh the advantages and disadvantages. You do a kind of calculation, more or less like the one I heard earlier. Basically, the questions that were asked were equivalent to asking what are the advantages, the disadvantages and the long- and short-term consequences. I will try to step back a bit from these things and speak more generally of what is at stake, that is to say the underlying values.

For a law to be a good law, it must be effective, achieve a clearly defined goal and be simple to enforce. These are criteria we tend to forget.

Morally, a good law must be fair. This means that it must apply to all members of society in the same way, without creating any unjustified discrimination. We may decide to protect a group of persons, for example on the basis of some aspect of vulnerability.

First of all, let's look at the advantages of the Bill. These are fairly easy to see, and explained quite concisely in the Bill. The idea is to use reliable technology selectively, to use DNA testing solely to identify a person through DNA analysis, in a specific criminal context. The aim is fairly explicit, and positive.

The second aim, also positive, is that the technology enables rapid, reliable identification of a person who has committed a crime. At the same time, the Bill allows for the elimination of doubt with regard to persons who have not committed the crime.

So, the Bill is fairly specific because it shows that we are concerned with serious offences, primary designated offences. The ultimate aim is the security of the population. On the positive side, the side of values, the aim is security of the population from primary designated offences that are serious and, as we were told earlier, fairly explicitly, from unsolved crimes, etc.

The second aim sought by the State is to identify criminals who, in this case, threaten State security, as witnessed by the reference to secondary designated offences. In my mind, these are the two value-related aims of this Bill.

In short, the advantages of DNA testing are maximization of security for the population and the State. Analysis of the positives reveals essentially the security of individuals, the population as a whole and the State.

Now, moving on to a summary assessment of the disadvantages which, in essence, are related to the protection of privacy. It is not hard to understand that DNA testing is a very effective social control tool, enabling criminals to be identified and centralized, national and international data banks to be created, producing a very powerful social control capability. The legislation gives the State broad powers in the name of security, to the detriment of protecting privacy.

The second disadvantage is that DNA testing is not a neutral method. As we have seen, it entails advantages, disadvantages and risks. Although the method contains no genetic information other than the information that makes it possible to identify a person, it does require tissue sampling. I was impressed by the questions asked on the difference that may exist between DNA testing and tissue sampling.

Because tissue is a part of the body, the sample contains a part of the individual. The fact that we tend to identify a person by means of body parts does not mean that fingerprinting and the use of body tissue or sampling can be considered analogous.

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Taking into account the discretionary powers of the Commissioner regarding use of bodily substances, and after analysis of other developments in the field of genetics, in my opinion there is a risk of subsequent extension in the use of a person's DNA.

We need only think of all the tests for predisposition to disease, tests for genetically transmitted diseases. There is a potential for widespread use of DNA. We can even conceive of a criminal's DNA profile as a possible extension of the current legislation. We can envision more or less covert practices being justified in the name of State security.

For these reasons, I draw your attention to possible future applications that should be considered realizing that, when technology is available, it is used as extensively as possible. If you consult a surgeon, he will probably suggest an operation: operations are what he does. Obviously, when a technology is developed, and someone is authorized to use it, that person will use it as much as possible. Furthermore, "Give us limits and we will respect them" has been clearly stated. However, this is a technology that has the potential for countless uses.

The third disadvantage is as follows. Beginning in 1989, the American literature on DNA testing reports interminable legal battles on the real, practical, current and pragmatic reliability of DNA testing. Because it has become an element of indisputable evidence, because it is scientifically proven, the only way around it is to question the reliability of DNA testing itself. We should expect quarrels among experts before the courts here. The American literature and jurisprudence relate numerous quarrels of this kind.

The fourth negative aspect—in my opinion an important question because it relates to distributive justice—concerns the financial effectiveness of DNA testing. The question is extremely relevant. Healthy pragmatism and a desire for justice require that we examine the proportionality of cost to social justice. I believe that here the burden of proof rests with those who are suggesting a new method. It is up to them to calculate its financial and social impact.

Have the financial cost of file storage and management, court challenges of the test and the lengthier trials entailed, lawyers' fees and specialist fees been examined in relation to the number of cases where DNA testing alone could solve the mystery of identifying a criminal? Proportionality is the issue here, in my opinion. Has the priority of the costs related to DNA finger printing been measured against other social priorities, in particular social justice? Those are my questions in terms of assessing the disadvantages of the project.

In short, because I want to keep this brief to allow time for questions, this bill on DNA identification poses the moral problem of making a selection of values that opposes the security of the population and the State, which are linked in the Bill, to protecting of the privacy of the individual and thus the population as a whole.

In my opinion, the dilemma poses the problem of the security syndrome that haunts North American and European governments, where we hear talk of open borders, the fear of illegal immigration, the fear of international or nationalist terrorism. The security syndrome leads the State to take stronger and stronger measures to control offenders.

This is what I call the security syndrome of today and I believe that, by using a method like DNA identification, we offer a kind of false security that stems from scientific certainty. In practice, the problems will be far more numerous than we think.

My question is the following. Does the government of Canada want to return to a not-to-distant past in which the State's attitude to genetics was marked by discrimination and eugenics? That is my question.

Who are we afraid of? It seems to me that it is important to make it clear that the State has the right and the duty to punish killers and rapists. However, the ultimate aim of justice does not morally authorize any means. It seems to me that there is a question of proportionality between means and social justice, and therefore priorities must be set for allocating resources to justice.

Thank you.

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[English]

The Chair: Thank you, Professor Parizeau.

If people who have questions would let me know, I would appreciate it.

I'm going to start with Mr. MacKay.

Mr. Peter MacKay: Thank you, Madam Chair.

Thank you for your presentation, Professor. In your last statement—I had to rely on the translation—are you questioning the right of the state to intervene on behalf of a victim of violence?

Prof. Marie-Hélène Parizeau: No, not at all. I said it is legitimate for the state to intervene. The state has a duty to intervene.

Mr. Peter MacKay: But to what extent?

Prof. Marie-Hélène Parizeau: It's a question of both to what extent and the professionality of the means. I think there are some problems here in terms of the professionality of the means, and especially about the question of distribution of justice. Do we want to put all this money...?

I don't have the proof I need that this technology will, without any doubt, effectively help, with certainty, to identify murderers and so on. I have a problem with this. From my perspective, the burden of proof is on the shoulders of the one who wants to propose the technology.

Mr. Peter MacKay: Which would be the state, in this instance.

Prof. Marie-Hélène Parizeau: Well, it depends. I've just heard that it's more the police who want to use this tool. The question, I think, is whether the state wants to use this tool and to what extent, and if it's a real priority in terms of justice and in terms of efficiency.

Mr. Peter MacKay: But I guess the premise I'm working from is that this is an effective tool to combat, in particular—amongst other things, but in particular—crimes of violence, such as rape and homicide. What greater purpose should we be striving for in the criminal justice system than to protect our citizens from those types of violations?

Prof. Marie-Hélène Parizeau: The problem is the balance between the protection of society and people in general. The fact is, this project of law is using a tool that can have great consequences on the way in which the protection of the privacy is effective or not. When you open the door to a technology, especially one linked to genetics, then it is easy to go wider and wider and to develop other kinds of tools we might not even suspect, actually.

Mr. Peter MacKay: Is your concern based on the accuracy of the science itself or is it more philosophical—that is, does the right of the individual get trampled here by the right of the state?

Prof. Marie-Hélène Parizeau: I think it's both. In principle, I don't feel comfortable with the choice to use this technology, especially in the balance with privacy. Pragmatically, when you see the American literature on DNA sampling and you see the cases that are in front of the courts, well, you're not so sure it's so efficient.

Mr. Peter MacKay: But surely you would agree that this tool, or this type of evidence, is part of the puzzle. It's not the be-all and end-all. It's effective in establishing presence at a crime scene, or in establishing that the person was there. It takes that element away, which I would suggest is going to be very helpful in reducing the number of cases that go to trial. It can be exculpatory as well as incriminating.

Prof. Marie-Hélène Parizeau: That's an hypothesis.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): No, it's a certainty.

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Mr. Peter MacKay: No, it's a certainty. It's black and white. If you put faith in the science itself that the DNA is accurate, and there's a match with a person, it puts them there without a doubt. They will either decide “Well, I'm going to go and fight this case on other merits and try to establish a reason that I was there and didn't commit the crime”, or they're going to say uncategorically “It was somebody else. I wasn't there. My DNA was not there”.

Prof. Marie-Hélène Parizeau: But you're reducing the proof to the question of whether you have a sample there or not. I think that's the kind of reduction that might be problematic, because in a way it's giving us the impression that without any doubt we can have the proof that you were there or not, or that you're the criminal or not.

I wonder if in practice this is absolutely without uncertainty. On the paper, or in the demonstration, as we have seen, it looked as if there was no problem. It looked like evidence, but in practice I'm not sure that....

My practice is in hospitals—I practise ethics in hospitals. You cannot imagine the kind of negligence that occurs, tubes that are mixed and so on. That's human error. I think we have to take this into account—the fact that it will be policemen who are allowed to take samples. They will do their best, I'm sure, but the problem of human error for me is always reduced when you are challenging a technology, and in practice, the fact that you might have to....

I'm sorry, I will continue in French because it's too difficult for me.

[Translation]

Mr. Peter MacKay: Very well.

Ms. Marie-Hélène Parizeau: In practice, if the real impact of human error is minimized, there is a risk of creating legal and practical complications. Basically, from an ethical viewpoint, when we are concerned with protecting the individual, the reverse is true. What I mean is, technology gives the impression of certainty.

[English]

We have the impression of certainty, but in practice I think we have to be aware that things are not so clear and cut and evident. That's one of the points.

But for me the major problem is the question of principle and the question of whether in terms of justice we have to develop this technology, and the use of this technology in this manner. That's my point.

Mr. Peter MacKay: Finally, is your position, then, that you are here to caution us, or are you in opposition to this bill? Do you feel we should be going about this in a very methodical and cautious way?

Prof. Marie-Hélène Parizeau: Personally I don't feel very comfortable with this bill because, as I say, it gives a very extended power to the state. It gives the impression that with a very specific tool we might resolve all the problems.

Mr. Peter MacKay: How do you differentiate between this type of evidence and fingerprint evidence? The fingerprint evidence—well, you saw the demonstration. I'm loath to see the intrusive nature of what was demonstrated being markedly different from taking a print.

Prof. Marie-Hélène Parizeau: For me, it's a question of nature. A fingerprint is a kind of individual mark, but the problem of les prélèvements du corps—the fact that you are using a part of the body and that you can gain plenty of other information when you have a sample of a part of the body, means that if you want to use this sample for other means, you can. You have the possibility to do so. The problem is that in genetics, there are actually so many developments in terms of identification of genetic predispositions and so on, that I wonder if there is a temptation to use those samples for other means, such as medical research.

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Mr. Peter MacKay: But that's presupposing that it's going to be used for negative purposes, is it not? If that's your fear, I'm sure you are aware that there is the safeguard that it will be criminalized if it's misused.

Prof. Marie-Hélène Parizeau: Yes, of course, but you know that raisons d'état can make for some exceptions. As I say, the problem with this project of law as it is written, especially for the secondary infractions, is state security. This means that you give to the state tools that it can use with a lot of discretionary power. I think the question in this case is that we may have the impression that it's limited, but in the way the control is presented, it opens the door to further uses in the future.

Mr. Peter MacKay: But to use the proverbial balance that we always refer to in law, is not the prevention of and the accountability for criminal behaviour going to outweigh the possibility of some future misuse? We're being kind of Orwellian in thinking it is going to be developed to the point where it might be able to classify criminals by their DNA or be used for research. On the balance, is what I'm saying.

Prof. Marie-Hélène Parizeau: The problem actually is that you have the tendency that technology is more and more interrelated. We have more and more difficulty in putting some limits on the use of technology, especially when you're talking about databases. We have more and more difficulty in putting a limit on the use of databases themselves. Given the fact that this technology is very powerful, I think we have to be aware that we're giving some power to the state.

Personally again, the question for me is the burden of proof. I don't think the balance between privacy and the security of the state and the population is absolutely evident here. I think there is a risk of misuse that we should be aware of, especially in the way that genetics itself is developing.

I'm part of an ethics committee in research. We have some research in medicine that uses a huge data bank of samples from people who don't know what the samples are used for. We have great difficulties in putting limits on the researcher. I think it's the same problem everywhere.

When you have a technology, it's easy to use it. The problem is whether or not it's really helpful and useful, and whether or not there is a risk of misuse. I think we have to be very cautious in this area.

The Chair: Thank you.

Mr. Peter MacKay: Merci. Thank you, Madam Chair. I apologize for going over time.

The Chair: That's all right. It was interesting.

Mr. Maloney, and then Mr. Ramsay.

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Mr. John Maloney (Erie—Lincoln, Lib.): You've indicated you have concerns about the technology and the accuracy of it. One of the items coming out is that this technology is very accurate. It goes down to perhaps human error, and that can happen. We can always check again. If I were a defence counsel and felt my client had been hit, so to speak, would I not run off and get another independent sample to confirm or deny that, to eliminate the possibility of human error?

Prof. Marie-Hélène Parizeau: Of course you can use more technology to resolve the problem, but again it's a question of the cost—the proportionality of the means against the end you're pursuing here. I'm not convinced the end we're pursuing here is really worth the fact that we've put some pressure around the question of privacy.

I wonder if everyone in the country would be very comfortable being asked for samples from parts of their bodies and wouldn't feel we were taking their intimate identities. My feeling is that the use of those technologies gives more and more knowledge about individuals and more and more privacy in front of the state is not evident.

There's a problem of proportionality of the means for me. I wonder if it's really in terms of distributive justice in the way we want to resolve those cases. Is it really the appropriate means in the balance of security for states and the people and in the balance of their respect of their privacy? For me that's the moral dilemma.

Of course, we can always say there will be some mechanism to help people who are in the position of having a problem with the sample or something like that. Just think for a moment if you were in this situation. I don't think it's very comfortable. Again, what is the end we're pursuing and is it the proper means that will really help us identify, with certainty and without other tools, those criminals we want to identify?

Mr. John Maloney: I appreciate your dilemma of the balancing of privacy versus the good in the investigation in solving a crime. Perhaps it's an unfair question, but if a member of your family had been a victim would you feel any differently? Would you be able to go from the theoretical to something real and practical?

Prof. Marie-Hélène Parizeau: I think everyone has to ask this question of himself. The other question is if I were a witness or if I had been in a place where there had been a crime a few hours later and my hair had been found, my genetic print would be somewhere in the police data bank. I think we have to balance the question of whether I am confident in justice and in the police, with the tools they have, that they will find a way to find the murderer or the rapist and so on. Will this technical tool be proportionately so helpful to find the solution? That's my question.

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Mr. John Maloney: For example, perhaps you used your own hair sample at a scene. This is just a tool of identification. The fact that they found a DNA sample of yours at the scene doesn't automatically make you guilty of the offence.

Prof. Marie-Hélène Parizeau: Of course, but it identifies me as being linked to an event that in any case I didn't have anything to do with, for example. The question is whether the state and the police have a right here to screen all the people who have been in a certain public or private place.

For me it's a question of the proportionality. Does it justify the money we will put into this technology? Will it be so helpful to find the murderer or the rapist?

Mr. John Maloney: On the issue of costs, we heard earlier testimony here from an individual who for the last three years has been trying to investigate the Jessop case, and they've spent $2.2 million and are nowhere.

Balance against that the costs of setting up this system and the various analyses that go on from time to time, versus another crime-stopping initiative with the gun control system. When we weigh all these, I just question the balance of the costs. In the long run we may be saving costs by going forward with this legislation.

Prof. Marie-Hélène Parizeau: For me it's not the cost in itself; it's the other priorities of social justice too. That's for me another point. There's the cost of technology and the fact that we're putting money into this technology, whereas we don't put money elsewhere. For me that's another argument here.

The Chair: Thanks, Mr. Maloney.

Mr. John Maloney: Thank you, Madam Chair.

The Chair: Mr. Ramsay.

Mr. Jack Ramsay: I want to thank you, Madame Parizeau, for your presentation here today and the concern you've expressed.

We're hearing evidence submitted on both sides of this issue. You have expressed at least two concerns here that I would like to touch on.

One is accuracy of the DNA sample at a scene, being able to prove conclusively that someone was there. We have had at least two cases where the DNA has cleared someone of a crime, particularly in the Guy Paul Morin case, where he has been exonerated almost entirely upon the result of the DNA testing.

In the Milgaard case, although he had been released, there were still real questions as to his guilt. Those were completely eliminated, certainly in the minds of the prosecutors and the Government of Saskatchewan. Any question of guilt was completely eliminated as a result of the DNA testing. So the accuracy of that is being accepted by the state.

You may wish to comment on that, but I'd like to go to the other area, and that is the improper use of the samples, which is important. My concern here is that of all the body samples taken throughout society on a day-to-day basis, this is the most closely guarded by way of legislation in terms of improper use.

Every time we have a medical, we give a sample of blood. I don't know what the doctor is doing with that, beyond that he's taken it out of my arm and is saying I'm okay. I don't know what he's doing with that sample.

For everyone who's given blood to the Red Cross, it's the same thing. We don't know the use. We don't even know the conditions under which that blood is secured. We don't know. There is no legislation that I'm aware of that provides that kind of protection when, as we've discussed here before, a blood sample is taken from newborn babies. What is done with that? Is it improperly used?

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If anyone wanted to obtain a DNA sample from you or anyone else, a sample that they wanted to use in a clandestine manner, all they would have to do is follow you around for awhile and obtain your DNA in a sample that you might discard in a Kleenex or whatever. With all of the samples that are available, we're now getting to the point at which I think we're going to have to be concerned about when we go to the hairdresser or go to the barber shop and leave our hair there, because one day they may be able to determine a DNA profile from the hair without the root part of that hair.

When we look at improper use, I think this bill provides the greatest safeguard for the samples that will be taken, for the host of samples that are being given by people every day, all across this country.

Would you have any comments on that?

Prof. Marie-Hélène Parizeau: I would like to comment. I think we have to make a distinction between the use of body samples in the medical area, in which the idea behind this is that it's for your own good, for your treatment or something else. Here, the purpose of the sample is for security, security for people or security for the state, so I think the finality is quite different.

We have to be more aware of this, and again the burden of the proof here is on the shoulders of the one who wants to propose a law like this, a law that authorizes the state to use a part of your body to make a proof of your identity with genetic tests. For me, it's the question of a human right and the right of the state to interfere in the private sphere of the individual.

I agree with you on the fact that in this bill there have been a lot of cautious elements that want to really, clearly define the use of the tests. In an ideal world, I would say that's great. But the problem is that, pragmatically, I'm not sure it's so evident that there won't be some improper use, that there won't be some human errors and so on; and that it will inflate the debate in court in terms of experts, in terms of lawyer's debates and so on.

Mr. Jack Ramsay: Focusing specifically on the area of abuse, I do not see the consequence of abuse flowing from all of these other bodily samples that are being taken in the manner that I've described in my preamble to my question. Consequences may be there, but I do not see them.

In my lifetime, I've not seen reason why I should be concerned, or why I should question the doctor about what he's going to do when he takes that blood sample from my arm when I go for my annual check-up. I didn't see any concern when our four children were born, when their blood samples were taken, to question as to how they were going to use them and what safeguards there were, because there have been no consequences of concern to me. If there is a concern for abuse, then that concern should have arisen out of all of these other areas where bodily samples have been taken.

I go back to the point where, yes, this bill is going to authorize the banking of it—Bill C-101 authorized the taking—and perhaps will expand the taking of the samples. But of all the programs we have within our society, regardless of the reason, whether it's for our health or for our safety, the samples are there. The issue is abuse.

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Of all of those programs that see these samples taken, this program is the most tightly guarded in terms of protection against abuse, because if it is abused, that abuse is criminally sanctioned. There's a criminal sanction against that abuse.

Again, I do not see the legitimacy of your concern about samples being used in a manner other than prescribed by law. If that was the case, if there was a vested interest in this country to do that, they have access to all these other areas, including the clandestine gathering of DNA samples from you and me as we discard it as we go about our daily affairs.

Prof. Marie-Hélène Parizeau: I agree with you that the bill has been constructed to protect the most privacy of individuals. When we talk about improper use, I think from my perspective it's more a future perspective, the consequences in the long term.

My impression is that if we authorize this, then it would be very easy, for public health, to oblige babies to have samples of blood taken for, say, dépistage de différentes maladies génétiques. What I mean is, this bill, with other already permitted uses of a sample of the body, makes it a general pattern that more and more the state, for good reason, security or health reasons, authorizes different bodies of the state to use some part of the body of people in general.

I am preoccupied by the fact that if we were, in the name of security, to authorize a technology this is very powerful, then for other means, such as health, it would be very easy to impose some obligatory testing, for example. We are creating with this bill, and in general, an ideology where there will be good reasons for the state to use body samples for different kinds of information.

As I say, I don't think the bill in itself doesn't give any guarantee of privacy, but for me, it's a piece of an ideology whereby more and more the state is intrusive in people's bodies in general, for many kinds of reasons.

Mr. Jack Ramsay: Thank you.

The Chair: Thanks, Mr. Ramsay.

Mr. Marceau, Mr. McKay, and then Mr. Forseth.

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): Thank you, Madame Chair, I will be brief.

First, thank you Professor for coming here to give us your point of view. The raison d'être of this committee is to hear people who hold different opinions. Your predecessors did not share your opinion, far from it.

I have several fairly brief questions, and here is the first one. You talked about a balance between the advantages and disadvantages of a bill. Should I understand that, in your opinion, the Bill, in its very principles, contains an imbalance so severe that it should not be adopted? Is that what I should understand?

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Ms. Marie-Hélène Parizeau: If you are asking me the question as an individual, I believe that the Bill as such offers certain guarantees. My problem however is with enforcement. It is not the Bill as such. On paper, in principle, there is a real attempt to restrict government intervention and protect privacy. However, in practice, especially as we see budgets being cut, as pointed out by my predecessors, the risk of slip-ups and improper use of the test seems to me problematic.

The more you use cutting edge technology, the more you need people who comply with a scientifically strict protocol. In my opinion, it is more a question of enforcement. At the same time, at the level of principles, I wonder whether the advantages are really so great with respect to our ultimate aim of prosecuting the perpetrators of serious crimes. Is the advantage of the test so great that we are ready to imperil specific individual freedoms and invest so much money in a technological procedure of this kind?

Mr. Richard Marceau: I may be wrong, and I think I know what the Committee's opinion will be, but I am under the impression that the Government is going to go ahead in any case and adopt a bill on a DNA Data Bank. This is my current impression.

You have referred to an issue regarding the security of the State, the major arm of State security, save the Army and the police. At present, the Bill as it stands gives control of the Data Bank to the police arm of the State.

Assuming a high probability of the Bill being adopted, we can attempt to check the infringement of privacy that it would make possible. I am thinking for example, of control of the Data Bank. Instead of assigning it to the police, what would be your second choice? If the Bill should be adopted, would you personally recommend that control be given to a non-government body, perhaps one controlled by ethicists?

Maybe, because there are ethical issues involved. I thought about the Privacy Commissioner or some other authority, a non- government agency supervised by individuals independent of the government. Would this not be a way of taking the direction you suggest? Would this not result in a closer check on the dangers of infringement of privacy?

Ms. Marie-Hélène Parizeau: I am going to answer your question very honestly. Adoption of the Bill would not surprise me because, as was said earlier, basically it is drafted in such a way that, on paper, it gives maximum guarantees for the protection of individual privacy and its ultimate aim appears straightforward. The ultimate aim seems clear.

The question now is, if it is adopted, within that framework what measures could in fact stop all powers being given to the State, in particular the police? We are familiar with events in Quebec in terms of police glitches, the problems encountered with internal police investigations, and so on, not to mention the second degree offences I referred to earlier, offences relating to the political security of the State.

Obviously, if data bank management is done by government, government will have all the power, including discretionary power to use the bank in an oppressive or unacceptable way.

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It is obvious that, if you try to remove control from the police forces, you are adding levels of authority, and adding to communication problems. You also run the risk of reducing the procedure's effectiveness. The logical conclusion is that the procedure must be used truly effectively, assuming the option selected. We cannot begin by taking half-measures that risk making the process ineffective.

Mr. Richard Marceau: But how would that make it ineffective? How would asking an independent authority instead of a police officer to do a test make the process ineffective? It would have the advantage of removing from the police the monopoly of power over the entire process.

Ms. Marie-Hélène Parizeau: In terms of a division of powers, this seems correct. The only problem is I'm not convinced that, in practice, the procedure would be well received. At least it requires less direct contact.

I will give you an example. In a hospital, there is an archivist. The archivist is a very important person. He is the one who manages the medical records and gives various health professionals access to them. Not everyone has access to the medical records because they contain private information. The archivist acts as an extremely important watchdog. The law defines what he is authorized to release or refuse to release. However, as the archivist is neither a physician nor a member of health care personnel, he has discretionary powers that enable him, in some circumstances, to segregate some information because he knows that, if it were given to a spouse or relatives, especially when they are divorced, and so on... He uses his judgment to resolve this kind of situation.

It is evident that, if you set up an independent committee to manage access to this information, you are adding a buffer.

I believe we should have no illusions. This would complicate the administrative process. I believe that, once the road leading to the use of this kind of technology is taken, there is no easy recipe for solving problems.

Mr. Richard Marceau: I see.

Ms. Marie-Hélène Parizeau: So, if you strike committees, if you set up additional bodies, you complicate things. This does not mean you are necessarily making it more effective or, in a very concrete way, actually protecting the public's right to privacy.

Mr. Richard Marceau: Thank you.

[English]

The Chair: Thanks, Mr. Marceau. Mr. McKay is next.

Mr. John McKay: Thank you for your testimony.

You correctly direct us to the uses and abuses of this technology and this process. Clearly the system is set up as a point of identification, an attempt to identify criminals for a variety of reasons, both inculpatory and exculpatory.

I'm interested in the view you have as an ethicist of the uses and abuses of the sample that is given. I'll give you an example, and I would be interested in your response.

If you—and if the police have their way it's as a charged person, but if the legislation goes through as contemplated it's as a convicted person—give a blood sample for the purposes of DNA identification and in the course of the analysis it is shown that this individual has AIDS, do you believe information should be communicated to the individual or to the population, either the prison population or other people? In your ethical opinion, is that an appropriate communication?

Prof. Marie-Hélène Parizeau: It's a very difficult question, because I think that's one of the kinds of abuses that can be developed. But I will give you—

Mr. John McKay: That's right. It's a use and it's an abuse.

Prof. Marie-Hélène Parizeau: It's a use and an abuse. But there are other kinds of examples.

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For example, say we take this genetic test in making the cartographie génétique, and you find that this man, for example, is XYY. You have a lot of literature that says there's a link between your genetic composition, or genotype, and criminality, for example.

What I'm saying is that you can open the door somewhere to this kind of information that's so easy to get. For this bill, it's easy to say that we will use it only for genetic prints, but maybe in five years we will say that we have a test that is—

Mr. John McKay: We want to do profiles.

Prof. Marie-Hélène Parizeau: Yes, new profiles. My fear here is the linking of medical and genetic knowledge to your identity.

AIDS is a good example. On what grounds will you oblige this dissemination of information? For example, what about in prisons?

Mr. John McKay: The question is even more complicated than that.

Prof. Marie-Hélène Parizeau: Of course.

Mr. John McKay: If the state has information that this person has AIDS and doesn't communicate it, then we have a very parallel system to what we've just gone through with the tainted-blood inquiry, in that the state ends up being responsible for the people infected with AIDS.

Prof. Marie-Hélène Parizeau: We can have plenty of examples with genetic diseases.

Mr. John McKay: Down's syndrome.

Prof. Marie-Hélène Parizeau: There's Down's syndrome and Huntington's disease, and you can go on. It's very easy to make the link between the knowledge on diseases and the fact that you have this sample.

The problem with AIDS is the question, whose security is it? Again, it's a dilemma between whether you have a duty to inform the person as well as protect the public health. How do you balance this?

Mr. John McKay: I was hoping for the answer, not the question.

Prof. Marie-Hélène Parizeau: I'm sorry, as I say to my students, I'm not God. More questions have to be asked of each of us. The problem here with the question of AIDS....

I'm sorry, but I will continue in French because it's a bit difficult here.

[Translation]

The problem of AIDS is basically the amount of discrimination surrounding the disease. There is the problem of information not requested by the individual being obtained from DNA testing.

[English]

There's the fact that the information had not been asked by the person, and it's information linked with health. You have here a completely different finality from the finality you had at the beginning, which was to identify the person. This means that there's the problem of la dérive, the fact that technology can be used in many senses and for many purposes, and here you have a good example of this phenomenon of misuse.

I think that's one of my fears. When you start with a technology that's so powerful, there's this capacity to have information that's not necessarily essential to your aim and that's very difficult to control. With technology, we have more and more difficulty with controlling the limits.

Mr. John McKay: Just as a point of example, you work as an ethicist in a hospital. As in Mr. Ramsay's question, you receive samples of various genetic material, blood samples, etc., on a daily basis. What is the ethical position of your hospital on inadvertent information generated from those samples that discloses a disease such as AIDS? Do you communicate that to the patient?

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Prof. Marie-Hélène Parizeau: Normally if you make a test you're supposed to tell the patient what the purpose of the test is. So if you—

Mr. John McKay: Well, I came in, I have the flu, I gave some blood.

Prof. Marie-Hélène Parizeau: Normally the AIDS test is not systematic on blood. If it's a test we may be using in the hospital, then you're supposed to give the person the information that the test will be helpful for knowing about this and this and this; hepatitis, for example, which is much more contagious than AIDS. Normally you're supposed to say what the test is for. Then if it happens that you have AIDS, for example, there's supposed to be a procedure where you have a consultation specific to this, to help you to—

Mr. John McKay: Then is the way out of the moral dilemma here to ask the individual whether you would permit this material to be used for purposes other than merely criminal identification?

Prof. Marie-Hélène Parizeau: I don't understand you.

Mr. John McKay: It may be that I'm going off here. My concern goes back to your issue of uses and abuses. Uses and abuses become quite problematic if you do not have the consent of the individual to use the material generated for anything other than, in this case, criminal identification. I don't know whether you've thought about this, but is there a means by which you could reduce your concern about the abuse by developing a form of consent that is broader than merely for identification?

Prof. Marie-Hélène Parizeau: The problem with this procedure is that it is a procedure and it relies on the people who apply the procedure. I have some doubts even in medical practice about the consent to treatment, to experimentation, and so on.

Mr. John McKay: Consent is almost always problematic. I agree with that.

The Chair: Thank you very much, Professor Parizeau. That was helpful and thought-provoking.

We'll rise now. The meeting is adjourned. Happy budget, folks.