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]

Wednesday, March 11, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're back, and we're still on Bill C-3, an act respecting DNA identification. We're also taking a look at Bill C-104 from the last Parliament—forensic DNA testing.

Today we have witnesses from the Department of Justice: Michael Zigayer, who's senior counsel, criminal law policy section; and Michael Pierce, who is counsel for the human rights law section. Also present in the room from the Solicitor General's Department is Paul Dubrule, who is general counsel. Yvan Roy, who is senior general counsel at the Department of Justice, is not with us because he was taken ill today.

I know you have some remarks, so if we could hear those, I know my colleagues have a great many questions to ask. Please go ahead.

Mr. Michael Zigayer (Senior Counsel, Criminal Law Policy Section, Department of Justice): Members of the committee, I welcome this opportunity to appear before you this afternoon to provide you with information that we hope will assist you in your study of Bill C-3, and also your review of Bill C-104, which was enacted in 1995.

I propose to begin my remarks by briefly describing the history of the government's DNA initiative, and then to address a number of issues raised by individuals and organizations that have appeared before this committee over the last month.

I will refer to developments in the law that have had a direct bearing on the government's legislative approach to the collection and use of DNA evidence in Canada, and I will try to answer a number of the questions that have been voiced with respect to the present use of the DNA warrants, forensic DNA analysis in the Canadian criminal justice system, and to explain the relationship between the DNA warrant scheme and the DNA data bank.

Yesterday we had an interesting introduction to DNA technology in Canada, and it's interesting to note that it has only been a decade since DNA typing methods were first used in criminal investigations in Canada. Their first use, of course, was in the United Kingdom, and yesterday we saw a short description of the Colin Pitchfork murder case. We saw how this technology was instrumental in excluding the prime suspect in that case—a person who had actually confessed to a murder—and later instrumental in successfully convicting a man for two sexual assaults and homicides of young girls.

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DNA typing enables forensic investigators to identify DNA banding patterns unique to the individual suspect, and to compare these to similar DNA profiles derived from biological trace evidence commonly found at crime scenes.

Expressed differently, DNA profiles are used to determine whether a suspect's genetic make-up is consistent with the genetic make-up of samples collected at the crime scene. It must be remembered that in the context of a criminal prosecution, DNA typing is only a form of circumstantial evidence that is taken with other evidence to support the theory of the Ccown that the accused was at the scene of the crime when the offence occurred. It does not determine the ultimate issue of guilt.

It must also be remembered that in the early 1990s, when the first cases involving DNA evidence were working their way through our courts, there were no laws specifically governing the collection of DNA evidence in Canada. In 1993, the Department of Justice was aware that there were significant policy issues relating to the collection and use of DNA evidence in criminal prosecutions, and was actively working on a consultation document to seek the views of Canadians on these matters. This effort coincided with the first of a number of significant decisions being handed down by the Supreme Court of Canada, which provided policy guidance with respect to the police power to search an individual incident to arrest, and in particular, the power to seize bodily substances from a suspect.

[Translation]

In 1994, in the Borden ruling, the Supreme Court of Canada pointed out that there was no—

[English]

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Excuse me, I just want a clarification. The witness referred to a set of policy guidelines produced by the Supreme Court of Canada. Did I get that right?

Mr. Michael Zigayer: What I said was—it's a good thing I have it written down—that there were a number of significant judgments by the Supreme Court of Canada, which provided policy guidance—

Mr. Derek Lee: Guidance. Thank you.

Mr. Michael Zigayer: —-with respect to the police power to search.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): He understands, but he has problems with his hearing.

Mr. Michael Zigayer: Maybe I was going too fast.

The Chair: No, Mr. Lee is just getting older.

[Translation]

Mr. Michael Zigayer: In 1994, in the Borden ruling, the Supreme Court of Canada pointed out that there was no law in Canada that specifically allowed authorities to take blood samples for forensic DNA analysis. Up until now, police officers asked the suspect if he would consent to provide samples. They used samples that the suspect had left behind, or in some cases, samples taken incidentally at the time of arrest.

[English]

Borden confirmed that legislation was required to fill a void in our law, and to clarify the law with respect to the seizure of bodily substances for forensic DNA analysis.

[Translation]

On September 20, 1994, the Department of Justice released a consultation paper asking Canadians to express their views on the legal issues relating to this matter. The feedback on this document showed that Canadians strongly supported the creation of a mechanism that would allow the police to get samples of biological substances from suspects for forensic DNA analysis and to establish a DNA data bank.

[English]

Responses to the consultation document were still arriving in the spring of 1995, when Mr. Michael Manning, the father of a girl murdered in the family home near Montreal, began seeking support for a law that would permit the police to obtain the DNA profile of a person suspected of killing his daughter Tara.

Bill C-104 was the government's response, and Parliament's response. Its careful design recognized the importance given by the courts to the protection of an individual's privacy and respected constitutional requirements pertaining to police searches identified in Borden and other cases.

It set up a scheme under which police officers investigating a designated Criminal Code offence could apply to a provincial court judge for a warrant authorizing them to take bodily substances from a suspect if certain conditions were met. The DNA profile derived from that substance could be used to determine whether there was a link between the suspect and the offence.

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The legislation dealt with collection procedures and the types of bodily substances that could be collected under the DNA warrant, as well as those persons who could collect them. It also provided a number of special provisions directed at maintaining the privacy interests of suspects and others specifically to deal with young offender suspects.

Since its enactment, Bill C-104 has provided the police in Canada with an effective tool in solving hundreds of serious crimes. Evidence obtained under DNA warrants have been used to conclusively eliminate suspects and has played a role in securing convictions in many cases. In a significant number of cases it has been instrumental in obtaining guilty pleas, resulting in reduced court costs and saving the victims from the trauma of having to give evidence at trial.

The Supreme Court's first comments on Bill C-104 came in the spring of 1997 when it released its judgment in Stillman. The accused in this case was a young offender charged with the brutal sexual assault and murder of a teenage girl before the enactment of Bill C-104. Semen was found in the victim's vagina and a human bite mark on her abdomen. The cause of death was a wound or wounds to her head.

You have heard from my friend Jack Walsh and others how Stillman was forced to provide teeth impressions and DNA evidence derived from the tissue discarded by the accused while he was in custody and how these were used to link him to this offence. The Supreme Court of Canada ordered a new trial. Jack Walsh prosecuted him, and the fellow has been found guilty of second-degree murder.

In determining whether the admission of these items would render the trial unfair and thus ought not to be permitted, the Supreme Court defined conscriptive and non-conscriptive evidence. Evidence is conscriptive when an accused, in violation of his rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body, or the production of bodily samples. All other evidence is non-conscriptive. Where the person is forced to provide evidence pursuant to a valid warrant, there will be no charter breach and the evidence will not be conscriptive.

Mr. Justice Cory, writing for the majority in Stillman, made the following comments regarding the DNA warrant scheme, and many people have referred to these remarks. Mr. Danson, in his opinion, has referred to these remarks. I quote:

Although the issue was not raised, it would seem that the recent provisions of the Code permitting DNA testing might well meet all constitutional requirements.

The procedure is judicially supervised, it must be based on reasonable and probable grounds and the authorizing judge must be satisfied that it is minimally intrusive.

It cannot be forgotten that the testing can establish innocence as readily as guilt as the Guy Paul Morin case so vividly demonstrates.

It seems to me that the requirement of justification is a reasonable safeguard which is necessary to control police powers to intrude upon the body. This is the approach that I would favour.

Some witnesses have recommended that Bill C-104 be amended. From Jack Walsh and Renéw Pomerance you have heard proposals for additions to the list of designated offences. On the other hand, there are others who believe the collection of DNA profiles is really no more intrusive than fingerprinting and have called for radical changes to the law that governs the collection of samples from suspects. They point to the fact that the Supreme Court has upheld the constitutionality of fingerprinting at the time of arrest and concluded that the court would rule the same way on the collection of DNA profiles on arrest.

These suggestions raise serious concerns in light of the fact that the Supreme Court of Canada, as well as other Canadian courts, have recognized that there is a significant difference in law between fingerprinting and DNA typing.

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Mr. Justice La Forest, speaking for the Supreme Court of Canada in Beare and Higgins in 1988 observed that while some may find fingerprinting distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. He noted there is no penetration into the body and no substance is removed from it. It is not only that the collection of bodily substances in itself is intrusive, it is also that there is a potential to learn a great deal more about the individual through the taking of bodily substances for DNA typing.

Furthermore, it is quite evident that the factors that justified the court in finding that fingerprinting at the time of arrest meets constitutional requirements do not exist in the case of DNA profiling. Mr. Justice La Forest had this to say concerning the use of fingerprinting during the earlier stages of the criminal justice process:

Fingerprints serve a wide variety of purposes in the criminal justice system. These include linking the accused to the crime where latent prints are found at the scene or on physical evidence; determining if the accused has been charged with, or convicted of other crimes in order to decide whether, for example, he should be released pending trial or whether he should be proceeded against by way of summary conviction or indictment; ascertaining whether the accused is unlawfully at large or has other charges outstanding; and assisting in the apprehension of the accused should he fail to appear. As well, fingerprints taken on arrest are used to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they can be segregated or monitored as may appear appropriate.

Clearly, the same utility cannot be claimed for DNA profiles. The process for forensic DNA analysis takes too long to be of assistance to the crown in these matters, which arise at the beginning of the criminal justice process.

Fingerprints can be taken and quickly compared with fingerprints stored in a national fingerprint data bank, while bodily samples from which DNA profiles are to be derived must be forwarded to one of a handful of specialized forensic laboratories for scientific analysis. Only after the analysis has produced the DNA fingerprint or profile could it be compared with the information in the DNA data bank.

The analysis might take a considerable length of time, longer than would be useful to assist the crown prosecutor in determining how to proceed against the accused, whether to oppose bail, and all those other factors that have to be determined within a very short time of a person's arrest. Under the Criminal Codec there's an obligation to bring the person before a judge within 24 hours or as soon as practicable. Also, where the crown requests an opportunity to show cause why the person should be held in custody, the maximum length of that period is three days.

Those who've suggested that DNA samples be collected at the time of arrest may not appreciate that they are effectively calling for the replacement of the DNA warrant scheme with one like that in place in the United Kingdom.

Those are my remarks with respect to Bill C-104.

With respect to Bill C-3, I have just a few remarks.

It's a very simple structure. The data bank itself is composed of two indices. The scheme for inclusion in the data bank is essentially the same as the one we see under the DNA warrant scheme—a scheme that therefore has some track record in having been demonstratively accepted by the courts. The scheme does include and require judicial discretion with regard to both primary and secondary designated offences. This is an area we anticipate questions on.

We believe that discretion is mandated by the Supreme Court in cases like Baron. Essentially the courts would assume and assert this discretion.

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We believe it's also necessary that this discretion be included in the legislation for the purpose of consistency in criminal law policy. As Mr. MacKay remarked the other day, under section 100 of the Criminal Code we have the firearms prohibition orders, where a mandatory order is made in certain circumstances but for the ability of the convicted offender, or discharged offender, to demonstrate why the order shouldn't be made. Essentially it's the same model being used.

The list of designated offences is the same as that which existed under the warrant scheme, and if we make changes to one we'll be making changes to the other. Generally these are offences involving serious violence or offences during which there is a likelihood that a bodily substance could be left at the scene of the crime or on something relating to the crime.

The data bank and the warrant scheme are designed to work together. In one of your sessions, I think it was demonstrated that a match obtained in the data bank would serve as reasonable grounds to found an application for a DNA warrant under Bill C-104.

I think it's important to underline that the DNA warrant scheme and data bank together will be most useful in resolving “whodunnit” crimes, those crimes for which there is no known or obvious suspect. I would mention that the Stillman case was a whodunnit crime. Mr. Bernado's crimes were whodunnit crimes, and we have many whodunnit crimes we need to resolve.

My final two points are these. The data bank scheme contains many of the same procedural safeguards over the collection of bodily substances that existed under the DNA warrant scheme. Overall we believe the DNA-data bank scheme, Bill C-3, balances factors such as the respect for bodily integrity, the control of one's own bodily substances, the privacy interests of the accused, and the intrusiveness of the collection procedures with the state's legitimate interest in taking samples and ensuring the protection of the public.

I won't go any further. I think that's enough. Unless Michael wants to say something, we'll welcome questions.

The Chair: Before we start, did you have an opportunity to look at Mr. Danson's opinion, which was given to us by the Canadian Police Association?

Mr. Michael Zigayer: Yes, I have, and Michael has as well.

The Chair: Okay. Mr. Ramsay.

Mr. Jack Ramsay (Crowfoot, Ref.): Thank you, Madam Chair. I want to thank our witnesses for appearing and giving us what they have on Bill 104 and Bill C-3.

In your presentation you didn't cover the retroactive taking of samples. That's one area we've had some give and take on, some controversy on. Inasmuch as you ventured into that realm, where you've authorized the taking of DNA samples from those who have been convicted and are still in custody, why have you limited it to designated dangerous offenders and multiple sex offenders? If it is charter safe, why haven't you expanded it so that people like Clifford Olsen can be subjected to the taking of a DNA sample?

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Mr. Michael Zigayer: Mr. Ramsay, when we were developing the retroactive scheme, we explored many options. The simple answer is to say that those we perceived as being most defensible, or having the greatest likelihood of having a justification, were those two categories that were identified in the legislation.

In the first case, dangerous offenders are persons who have been assessed by the courts as presenting a continuing risk to society, so if they should ever get out, ever be released from prison, and some who have been designated dangerous offenders are now being released...it was felt appropriate to include them as a first category.

The second group is persons who have committed more than one sexual offence. This in itself demonstrated a degree of recidivism.

Those are the two main reasons for taking those groups.

Michael, do you want to add something?

Mr. Michael Pierce (Counsel, Human Rights Law Section, Department of Justice): The only thing I would add is that it's very difficult to predict accurately the future risk of reoffending. There's increasing pressure to do that and to add provisions to the Criminal Code in response to determining future risk.

Clear charter consequences come with a retroactive scheme. In light of those consequences, which require the greatest burden of justification in terms of societal interest that the government can manage, it was identified as the protection of the public...and therefore the risk of recidivism that is really at the heart of the societal interest that's capable of that justification in charter terms.

We have therefore identified the categories. The dangerous offender category is one for which you can say prima facie that these people are at a high risk of reoffending; that's a designation they carry with them. The second category is for those who have a pattern of recidivism. In light of that pattern of recidivism, we've been able to do research to show—and it's well known—that sexual offenders have the highest recidivism rate. Those are the two categories we've been able to carve out.

A category for murderers, for example, would be a difficult one. I don't want to suggest it's impossible, but it's a difficult one. We know there are extremely low recidivism rates for murderers in general. As a result, it would take some considerable tailoring to try to come up with a category for murderers.

There is no legally recognized definition of a serial killer, which would be a category we would otherwise look to. The literature suggests there simply isn't a category that can be legally defined for serial killer, and that proposes significant problems then in appropriately tailoring a scheme to ensure that it's not overly broad as to whom it captures.

Mr. Jack Ramsay: So your standard was justification, when you looked at the retroactivity.

Mr. Michael Pierce: The standard for me is justification, because I provide charter advice. My colleagues and colleagues from Solicitor General provide—

Mr. Jack Ramsay: Was the standard of justification based upon the solving of past crimes?

Mr. Michael Pierce: No, it wasn't. While the solving of past crimes may flow as a result of entering an individual's DNA sample into the data bank, that justification, as a primary justification for taking the sampling retroactively, would pose some problems.

If you take a sample prior to a conviction for the purpose of investigating an offence, you go under the warrant scheme with all the constitutional protections that entails. Immediately upon conviction you're in a position to take samples flowing from conviction. It's not primarily for the purpose of solving past offences, but that certainly is one of the considerations. Down the road, though, when you're talking about individuals who are currently incarcerated and who at the time of their offence had no notice of the possible risk of having to provide DNA samples, the standard is much higher in constitutional terms. Once those people have been finally punished for their crime—that is, the sentence has been imposed—to change that or alter that runs against some long-standing constitutional principles.

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Mr. Jack Ramsay: The evidence we have heard for this committee indicates clearly that if the police have failed to take fingerprints at the time of arrest or charge and before conviction, they can be taken retroactively after conviction.

Mr. Michael Pierce: Flowing from conviction.

Mr. Jack Ramsay: After conviction. The fingerprints can be taken after conviction.

Mr. Michael Pierce: That's right, but I just want to distinguish the situation where you're taking a fingerprint after conviction where the fingerprint is flowing... I'm sorry. You're going down the fingerprinting road and I'm still talking about DNA. I apologize.

Mr. Jack Ramsay: The example is that if Clifford Olson's fingerprints weren't on record, they would have the authority to take his fingerprints. That is constitutional. Would that threaten his constitutional rights, his charter rights?

Mr. Michael Pierce: Certainly fingerprinting is to be distinguished from the taking of DNA. In the leading case on the matter, the Beare case, the Supreme Court did not even conclude that fingerprinting constituted a search or a seizure. In contrast, we know DNA sampling clearly constitutes a search or a seizure, and therefore the constitutional protections have to be put in place in regard to DNA sampling.

Mr. Jack Ramsay: You're saying that to take a sample from the likes of Clifford Olson would constitute a search and seizure.

Mr. Michael Pierce: It would.

Mr. Jack Ramsay: So the taking of a DNA sample from anyone, then, constitutes a search and seizure.

Mr. Michael Pierce: That's correct.

Mr. Jack Ramsay: Do you need a search warrant to do that?

Mr. Michael Pierce: If it's for the purpose of investigating an offence you will normally need a search warrant. There are some exceptions to that, but in general that is the case.

Mr. Jack Ramsay: Is that what's provided for under Bill C-104?

Mr. Michael Pierce: That's correct.

Mr. Jack Ramsay: You're saying that is in fact a search warrant?

Mr. Michael Pierce: That's correct.

Mr. Michael Zigayer: It's a specialized search warrant.

Mr. Jack Ramsay: I want to turn to another subject, and that has to do with the time. In your presentation you quoted a judgment by one of the judges. His opinion was that because of the delay in getting the response for the profile from a DNA sample, it would not provide the same kind of service to the police department as fingerprinting does, which is quite rapid.

We heard yesterday that the DNA profile from a sample has been greatly reduced from just a few years ago. From your interpretation, as the time is decreased, does the judgment rendered by the judge you quoted become more and more redundant? Is that what we're talking about here? In other words, if the results or the profile of a DNA sample could be determined within hours, would that eliminate the argument presented in your brief from the judge you quoted?

Mr. Michael Zigayer: I quoted from the remarks of Mr. Justice La Forest in Beare and Higgins. Essentially, all I used that passage to establish was the utility of fingerprints at the outset of the criminal justice process.

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You saw Mr. Newark fingerprinted the other day. It was a matter of seconds or moments to get his fingerprints. Then it's a matter of rather quickly using electronic means to compare that against the fingerprint data bank that's maintained by the RCMP. The process of seizing and then analysing and comparing DNA obtained from the bodily substances of a suspect are much different.

Let's just suppose that the crime didn't happen in Toronto or Montreal, where there are crime labs, or Regina, where there is a forensic lab operated by the RCMP. Let's just say it happened in Baker Lake, Northwest Territories, or Iqaluit. You seize your substances from your suspect and you're snowed in for a couple of days because of weather. You can't get it to the lab and you have on your hands this suspect, who by law you are required to bring before a justice and to release if you can't show cause for the person to be detained.

What I'm saying is the police could take their fingerprints, use the electronic means to compare against the data bank, and get their answer electronically in a matter of minutes or hours. They would have that available to the prosecutor or to them, should they want to show cause. In the case of DNA, they'd still be holding on to that until the weather cleared and they could ship it out to one of those forensic labs around the country where the analysis could take place.

Then you might have to deal with a bit of a backlog. Let's face it; if we're talking about automatically taking DNA in the case of every designated offence, not just every indictable offence or every criminal offence but every designated offence under the code, think of the volume going to these labs. How many break and enters are committed every year? If it were a mandatory collection on arrest, you'd have huge volumes of samples to be collected.

I suppose in the case of an offender who had already been profiled, from whom you had already obtained a DNA profile, you wouldn't have to go through the process again. Just like you'd have his fingerprint on record, you'd already have his DNA profile on record. The problem would still persist for those were coming into the criminal justice system for the first time.

All I'm suggesting is that it does take time and it will always take time because it's not as simple a technology as the technology of fingerprinting. It may be that some time in the future there will be mechanisms that will permit DNA printing as easily as regular fingerprinting, but we're not there yet. Maybe it's not my position to say, but I don't think it would be appropriate to draft the legislation in anticipation of something that doesn't exist yet.

This is not a matter of science fiction. We're dealing with the technology of today, and if matters change, if technology changes in the future, it might be appropriate to re-examine certain aspects of it down the road. No matter what the technology was, however, we would still be faced with the charter concerns, such as presumption of innocence and the balance of the intrusiveness and the purpose.

What is the justification for obtaining a DNA profile from a person in a case where there is no DNA evidence associated with the commission of the offence? In other words, suppose a rifle was used to kill someone at a distance. At the crime scene where the victim's body is, there's the victim and there's the bullet, but none of the victim's bodily substances have gotten onto the suspect or the gun. They are at some distance. Similarly, none of the suspect's DNA has gotten onto the victim. In a case like that, there is no DNA evidence. There is no utility to DNA in that case.

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Mr. Jack Ramsay: What you're saying is that there is no 104 justification to take a DNA sample.

Mr. Michael Zigayer: There's no justification period.

Mr. Jack Ramsay: No, today there isn't, but what we're looking at is the legal or statutory authority to do that very thing. If you've read the testimony of witnesses who have appeared before the committee here, you would understand why they're asking for that. It's to determine whether or not the person they have arrested or charged has left DNA at the scene of some other crime that's in the data bank. That's the purpose of it.

Mr. Michael Zigayer: I really do understand that. I understand that they've been able to link people in Great Britain with their system. I expect we'll be able to link people to crimes here with the system proposed in Bill C-3.

Mr. Jack Ramsay: And that's the purpose—

Mr. Michael Zigayer: The difference—and I think Mr. Pierce will back me up on this—is that our courts have given us guidance indicating to us that prior judicial authorization is required for the taking of a bodily substance for the purposes of DNA analysis. It's a search. It will be viewed as a search. A search must be judicially authorized.

Mr. Jack Ramsay: Okay.

I have more questions, but I'll get back to them.

The Chair: Thanks, Mr. Ramsay.

Mr. Lee, do you have a question or two?

Mr. Derek Lee: Yes, sure.

I wanted to comment on how we're dealing with these issues here in Parliament. I certainly have respect for your view of the evolving state of the law and the role of the courts in helping us to do that. You've indicated that you were going to explain to us some of the developments in the law.

If I could kind of shift the structure just a little bit, this is the place where we actually make the law. Any major developments in the law are more likely to be done here, and I think that's what we're trying to do here now. I realize that the courts have played a role, and I realize that both of you as lawyers would look down the street more often than you would look here. But as we work on this task of constructing a piece of law, while the references as to what happens down the street are helpful, they shouldn't shape—and I hope you'll agree—our primary responsibility to our electors to create law. We'll do that in a way that is charter compliant in our view, and if the Department of Justice or the people down the street want to test it at the invitation of litigants, that's okay.

That's not a question, but I wanted to make that comment. I'm sorry I didn't get into questions.

The Chair: I suspected there would be a comment like that.

Mr. Derek Lee: I wanted to take up this question of the evolving technology. Mr. Ramsay has invited you to comment on the possibility of what the circumstances might be if we were able to get a DNA profile within minutes. I'm fairly confident that is going to happen at some point. We've already been told in evidence that a movement of the hand, with or without the fingerprints but with the palm print, is capable of providing enough material for a DNA sample. At some point, somebody's going to have a little machine that will simply take a very small plug out of a piece of skin, somewhere where there are no nerves and it isn't felt, and it will become the very simple DNA tissue. I'm presuming that will happen at some point.

Do you know what the actual turnaround time is now to get a DNA profile in the big city?

Mr. Michael Zigayer: That is a question that would have been well put to the witnesses who appeared yesterday.

I think the witnesses who appeared yesterday said they could probably do a turnaround of about four days, but that would be if you had a perfect specimen.

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You're saying, for example, here's a plug and it doesn't have to be removed from jeans or a wall board or something like that, and that adds to the time, complexity and overall cost of the operation. But they propose to take a blood sample. Again, Mr. Newark was the contributor. A sample was taken from his finger and there was about a quarter-sized stain of blood on a blotter paper. They would take a small prick of that and analyse it. They wouldn't have to make any special effort to take it off clothes or whatever, so they say it would take about four days for something like that.

Mr. Derek Lee: Okay. The last case you referred to dealing with DNA as a concept or a scientific tool is about 10 years old. That was the Beare case.

Mr. Michael Zigayer: That was not a DNA case, that was just a pure fingerprinting case.

Mr. Derek Lee: But did they not refer to DNA at that time?

Mr. Michael Zigayer: What they talked about was the taking of bodily substances.

Mr. Derek Lee: That's good enough—the taking of bodily substances. One of the difficulties is that the taking of a bodily substance was seen 10 years ago to be a fairly intrusive, or likely to be intrusive, probing of some sort in order to get the material. You know, 10 years is a long time in this business and it certainly is in the DNA business.

That case or a subsequent case—correct me if I'm wrong—has found that DNA sampling is intrusive and needs justification. It is a search of some sort. But there isn't a case that nails down fingerprinting as being a search. Is that correct? I think that's what you're saying.

Mr. Michael Pierce: That's correct. The Beare case didn't include consideration of sampling at the time of arrest. There are competing authorities as to whether fingerprinting constitutes a search. In some cases they have said yes and in some they have said no.

Mr. Derek Lee: Is it fair for me to conclude from all the evidence we've had and what you've said here today that fingerprinting is now used both for identification purposes of the suspect and for investigation purposes for other crimes?

Mr. Michael Zigayer: Yes, it is used in respect of both the crime for which the person's been arrested and fingerprinted and others.

Mr. Derek Lee: If you substitute the DNA profile for the fingerprint and walk through the current process of dealing with a person who's charged with an offence, I can't find any material difference in the treatment of the profile in the police and prosecution process.

I'm at pains to find a difference, and I'm measuring it from today and not from the case 10 years ago. The DNA profile would be used today for the identical purpose that the fingerprint is used today. Is that not correct?

Mr. Michael Pierce: I think there are some distinguishing characteristics. I take it you're saying don't look at the taking of the sample; let's just talk about the profile itself, do the analysis and go on from there.

There is the potential today, and certainly a prospect of expanded potential in the future, that the profile may tell us a whole lot more about an individual than simple identity. That's the first and most significant consideration. There is the risk that the profile can identify diseases the individual may have or identify relations to other people—possibly family relations. It certainly would identify a twin. So there is more information contained in the DNA than in the fingerprinting.

Mr. Derek Lee: I appreciate that a DNA sample is capable of providing all that information—

Mr. Michael Pierce: Not the profiles.

Mr. Derek Lee: —but the police... If you're correct, we've been misled here because we've been told very clearly and we've been shown the DNA profile. All it shows is identity. All it gives you is a numeric read-out. That's all they're looking for and that's all they want.

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Mr. Michael Pierce: Twins, for instance, may have the same numeric read-out.

Mr. Derek Lee: We realize that. We've been told if you are an identical twin there is someone else on the planet with the same numbers.

So the identification process is not looking for the disease or the other information. It's simply looking for a standard set of numeric describers unique to that person. That's all that will be in the data bank. That's all the DNA profile is looking for at this point, and that's all I'm sure the commissioner of the RCMP will ever be interested in. If he isn't, we have another issue to deal with in this bill.

I appreciate your concern about DNA having a lot more information than we're looking for, but right now in this bill and in the way it's been framed, we're only looking for the identifiers. That's all we're going to have in the data bank.

Is there any other difference between fingerprinting and DNA?

Mr. Michael Zigayer: Can I take you back to a fundamental question? If you have all the information you need with fingerprints, what more do you need?

Mr. Derek Lee: We don't need DNA at all, then. Why are we bothering with the bill?

Mr. Michael Zigayer: No, you need DNA as an investigative aid in resolving whodunnits where, as in the case of Borden, the victim couldn't identify her assailant, or in the Bernardo cases or the Stillman case, where the victim is dead. In the Borden case she was still alive but she was an old woman, it was dark, and she couldn't identify her assailant.

Mr. Derek Lee: You've already indicated that fingerprinting is used for investigative purposes.

Mr. Michael Zigayer: Yes.

Mr. Derek Lee: How can we have difficulty using the DNA profile for investigative purposes if we don't have problems using the fingerprint for investigative purposes?

Mr. Michael Zigayer: You have a way of getting it right now. It's called Bill C-104. There's a procedure under law that seems to have met with constitutional approval that will allow you to do it if you need it for investigative purposes, as opposed to fishing expeditions.

Mr. Derek Lee: Surely the taking of a fingerprint at the time of charge and using it to investigate whether or not that person has been involved in another crime by using the fingerprint is identical in concept to taking the DNA profile and using it to investigate whether that person has been involved in another crime.

Mr. Michael Pierce: Of course, the difficulty is that DNA profiles don't fall out of the air. They come from DNA samples that have to be taken.

Mr. Derek Lee: A fingerprint doesn't fall out of the air, either.

Mr. Michael Pierce: It doesn't require bodily intrusion, though.

Mr. Derek Lee: Our discussion is based on the DNA profile being there. You will recall that we discussed this very clearly as we began this.

Mr. Michael Zigayer: I think we can agree that if you have that DNA profile in your data bank, you can match it against anything you want. You will be matching it continuously against new additions to the crime scene index. It'll be an automatic function.

The convicted offender's DNA profile—that series of numbers you've referred to—remains indefinitely in the convicted offender index. As new unsolved crime scene profiles are added to the crime scene index, they'll constantly be compared to that. We can't overlook the distinction, however, of the collection phase.

Mr. Derek Lee: I've asked you to draw a distinction between the fingerprint and the DNA, and you have pointed out for our attention the exhortations of the court that refer to the intrusiveness of DNA sampling, and I accept that. At this point there is a degree of intrusion.

You've pointed out that the DNA is capable of revealing a whole lot of other information about a person, which I don't accept as something to look at here now. That's a reason to look at the whole privacy issue of the use of the DNA. But other than those two things, and possibly an expense factor, I don't see a reason yet to distinguish between the fingerprint and the DNA.

I'm inviting you to help me distinguish because, as a legislator, I've been invited to look at the benefits to society of taking a DNA sample at the time of charge for, let's assume, the primary designated offences.

• 1630

At any rate, thank you. Subject to the answer, that will conclude my questions.

Mr. Michael Pierce: In terms of an answer, I simply would have difficulty abstracting it from the taking of the DNA and the information that's contained in it. I appreciate what you say. We do like to operate under the assumption that all privacy will be protected appropriately. Nevertheless, constitutional protections require us to look at the possibility that something could go wrong and that privacy could be violated.

So it's those constitutional protections that are at issue here when we talk about sampling on arrest. We have to take those constitutional considerations seriously.

The Chair: But if we have—and this is if you don't mind, Mr. Mancini; my brain seems to be clicking in and out today—legal constructions, as we do in the act, which prevent the misuse of this information, which prevent us from using this information for other purposes, and we've limited in every way that's humanly possible in terms of the legislation the abuse of this data we're collecting, then doesn't that answer those privacy issues? Aren't we just down to whether or not we're going to have a search?

Mr. Michael Pierce: I think it should answer your privacy concerns in a policy context—that is, in terms of the decision you have to make here about whether or not this is a good thing. But in terms of the legal considerations and in particular the charter considerations, it unfortunately doesn't answer that.

When we look at the guarantee against search and seizure in section 8 of the charter, the court undertakes an analysis that appreciates a risk that privacy will subsequently be violated once the state has control of information about you. For example, there is a heightened risk where the state records a conversation that distinguishes it from the risk of the state simply overhearing it. The difference is, the state has control of it once it's recorded it and can use or abuse it.

Unfortunately, and I don't think it's in any way to cast aspersions on the government, it's an assumption that underlies constitutional analysis.

The Chair: But wire-taps, in my view, are one of the most intrusive things the state can do to a human being—to take their thoughts or to take their private communications. And it happens.

Mr. Jack Ramsay: Unknowingly.

The Chair: Yes, anonymously and quietly, without the victim of the intrusion knowing about it.

I really struggle with this, because I see this as a tremendous tool for solving crimes and one of the greatest things we can do, in my view, for victims of crime. It's a little exasperating. In five years or two years or six months, when DNA can be taken in a non-intrusive way—and I think we're coming to that—then I guess all these arguments will go away.

I accept the intrusiveness argument—I don't like it, but I accept it—but I think we're doing lots of things that are more intrusive than plucking a hair out of the back of my head.

Mr. Michael Pierce: Could I respond very quickly to that?

The Chair: Oh, no, I don't ever let people respond. I just go on. It's a little personality trait I have.

Some hon. members: Oh, oh.

Mr. Michael Pierce: First, you're certainly correct about wire-taps being tremendously intrusive. As a result, Criminal Code protections with regard to wire-tapping are extremely strong. They're strong in terms of governing private wire-tapping—the actions I may have in wanting to record a telephone call—and also if it's going to be used for police investigation, for which you need to get a warrant. Essentially, what we're saying here is that if you want to take DNA for the purpose of investigating a particular crime, you need to get a warrant.

• 1635

That's the first one. Second, and I think this is probably an ongoing concern, future developments are going to change the landscape in regard to DNA. There is no question about that. It will change the legal analysis down the road.

The Chair: So if we make a mistake now and push the envelope too far, we could get smacked by the Supreme Court and not be able to recover as quickly as if we had waited for the technology to catch up. Is that what you're saying?

Mr. Michael Pierce: That's correct.

The Chair: Okay. Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): If I can pick up on that, because I think I come at this from a different perspective—

The Chair: That of a defence lawyer.

Mr. Peter Mancini: Yes. Some might say a skewed perspective. I anticipate the charter challenge. When the court talks about the intrusiveness, I see that in a different light because we've had witnesses before us indicating this, and I think, Derek, some of your questions indicate it: how intrusive is it, really, to pluck a hair from the back of the head or to take a little pinprick? Or suppose we have the technology where you can take a cell and the person will not even feel it.

My understanding of the parameters the courts have set out, which we're free to disregard, is that it doesn't matter that it hurts, it doesn't matter that you feel it: the sacrosanctity of the human is such that even if they can take a sample like this, the state is taking a portion of myself. And that's what we mean by intrusiveness. It's not whether I feel it, not whether I know it's being done. It's that the state has the power to take a portion of me.

Am I reading that correctly? Are those the concerns that you have when you talk about the intrusiveness of the taking of the DNA sample? And is that the distinction between that and the taking of the fingerprint evidence? The fingerprint is an impression of me, but the taking of the DNA for analysis is taking a portion of me, of who I am. Am I right in that, Mr. Pierce?

Mr. Michael Pierce: I wish that I had said it.

Some hon. members: Oh, oh.

Mr. Peter Mancini: Okay.

Mr. Michael Pierce: You're absolutely right, and that is something that gives rise to a great deal of confusion. We talk about intrusiveness and we think of that in terms of physical pain, in terms of the physical consequences, but it's not that. It's the intrusiveness of the violation of the self—

Mr. Peter Mancini: That's right.

Mr. Michael Pierce: —and that's why, in fact, the court has carved out a special response in regard to taking of bodily samples and has said that normally when you use a person's body against himself or herself, it is, for instance, in the context of a line-up, where we say he or she has to line up to be identified. That's not taking from the self. They've now created this new territory in regard to taking of the self where much higher standards will apply. That's correct.

Mr. Peter Mancini: Okay, let me proceed a little further on this issue of the charter and the taking of samples from those who have already been convicted, have served their time and are out. You've given us a clear indication; you've said it's been restricted because of taking into account the rights of those who have already served their time. That's the reason we have a narrower scope of people from whom we can take those samples.

If the test of that is those who are at high risk of reoffending—and you've gone through the list and we know these people who are potential reoffenders—why don't we just limit it to section A and say it's those whom the courts have already declared to be dangerous offenders?

I'm going to go at it the other way: why are we including the other categories? Instead of expanding it, why haven't we limited it to those whom the courts have clearly said are dangerous offenders, they have been designated as such, and therefore, that may justify infringing on their rights somewhat to take those samples after they have served their time.

Mr. Michael Pierce: It's a good question. As I said earlier, this is an area where we are feeling regular pressure at the Department of Justice—

The Chair: You are? Welcome to the club.

Some hon. members: Hear, hear.

Mr. Michael Pierce: —and I'm sure you are in Parliament, in general, about this idea of future risk and protection of society.

• 1640

Certainly dangerous offenders are a category where future risk has been identified. There are other features to the dangerous offenders provisions, though, that may mean that people for whom there is clearly identified a future risk of reoffending may still not qualify to be dangerous offenders. That's why we've taken the extra step of carving out a category where we know the recidivism rate is high.

Mr. Peter Mancini: I'm almost afraid to raise this next one. Somebody said to me when I was home in my riding that all you lawyers do is fight over “may” and “shall”.

This actually comes from a question Mr. Ramsay asked me. As I read this proposed subsection 487.055(1), the justice has the final discretion on the ex parte application regarding whether or not those who have been convicted of prior offences should have their sample taken. It does not mean that in every case it will be granted. We don't anticipate that, do we? The discretion is there; we haven't said “shall”. We haven't said “the judge shall, on ex parte application” for the following things that are set out. It just said they may on an ex parte application issue the necessary documents for the taking of the sampling from those who have already been convicted.

Mr. Michael Pierce: Let me put it to you this way. Michael, jump in if I'm either getting it wrong or you need to add more. Essentially what we've done by creating this ex parte process is at least given the opportunity for a constitutional argument to be raised, for example. There is a chance for someone to say hold on a second here; something isn't right.

The ex parte application isn't created for the purpose of introducing discretion in any general sense. It's to be distinguished, for instance, from proposed section 487.051, where we've expressly created discretion when someone's convicted of an offence. That wasn't the purpose of this provision, but it still leaves the possibility that if something is really wrong there is somewhere you can go.

Mr. Peter Mancini: Don't get me wrong; I'm very supportive of it. I just thought I might as well put it out there now.

Mr. Michael Zigayer: I will just add one small comment on that. In the decision by judge Casey Hill in Ontario in R. v. F(S), he specifically looked at the ex parte hearing process. It was challenged. It was suggested that the DNA warrant procedure should be different, that the suspect should be given notice and then an opportunity to appear before the provincial court judge, where the matter would be dealt with, rather than an ex parte process. It's specifically ex parte in the DNA warrant scheme.

Mr. Justice Hill found no problem with ex parte where the offender was at liberty. While the DNA couldn't be destroyed or altered in any fashion, it was always possible for the suspect to abscond. The ex parte application process, similar to every other search warrant process, was entirely appropriate. He did recognize the possibility that where the suspect was in custody, either because he was a serving prisoner having been convicted of some offence or because he had been denied judicial interim release, then it was open to the provincial court judge to require the giving of notice and to hold a regular hearing.

Mr. Peter Mancini: You talk about the speed of fingerprinting and the kind of information it can provide for us. Some of the witnesses who have come before this committee have said you should be able to take the DNA sample at the time of arrest for the purposes of bail hearing, for the purposes of identification. Essentially the fingerprinting will provide that kind of evidence as it does now for the bail hearing, won't it?

If you have the fingerprint evidence, you then know this guy was convicted of a prior offence. There's a warrant for him in British Columbia. You know this is outstanding, you know that's outstanding, all of which is evidence the police—

• 1645

Mr. Michael Zigayer: You have it, and you have cheaper technology to do it.

Mr. Peter Mancini: Okay.

Those are my questions, and I'm going to apologize, but I have another special committee that I have to go to. I promised I would be there at 5 p.m. If I leave early, it's not because of any other issue.

The Chair: Thank you, Mr. Mancini.

Mr. DeVillers.

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

My question deals also with the charter scrutiny on the retroactivity. If I'm following your presentation, you're saying that in the two categories that have been chosen, the opinion is that they would withstand a charter challenge on the basis that the rate or likelihood of reoffence or recidivism would be higher in those two categories. Am I understanding that correctly?

Mr. Michael Pierce: With the categories as they've been defined, we're in a position to make some credible arguments in court in defence of the scheme. There are certainly constitutional risks, though, because this is new territory.

Mr. Paul DeVillers: But the reason you've chosen those two is because of the likelihood of a reoffence or a recidivism in those types of offences, as opposed to the other offences for which the bill would require the taking of DNA.

Mr. Michael Pierce: That's correct. That's the primary factor.

Mr. Paul DeVillers: But you're saying this is new territory, it's not been tested.

Mr. Michael Pierce: That's correct as well.

Mr. Paul DeVillers: That's all I wanted to understand.

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): I respect the opinions given to us on charter challenges. You certainly have a wealth of experience, and now I'm certain you have more than anyone here at this table.

We're talking about the intrusiveness of the DNA sampling. I appreciate what the courts may have said about this. If we look at it from where Mr. Mancini is coming, we can certainly appreciate it. Certainly, the pricking of a finger is no more than what most diabetics do a couple of times a day every day. The most intrusive would be a buccal swab in the cheek. With advancing technology, who knows? As you say, that may do it.

I have some sympathy, but I'm struggling with the position taken by Mr. Lee on this vis-à-vis taking a sample at the time of charge as opposed to following a conviction. Being a competent legal counsel, as you are, you can argue both sides of the case.

Are there arguments saying that if we so choose to propose an amendment and pass an amendment to the statute saying that samples are to be taken at the time of arrest, are we on thin ice? No ice? It's new ground. Can we be setting a new direction with this?

When I balance that with the safeguards that are in the act for protection against abuses, as well as with what value it has for investigation of other crimes... I'm struggling with the balance issue—privacy versus the utility of this as an investigative tool.

I look at the $2.5 million that was given in investigating the Morin situation since Mr. Morin was found not guilty. I've lived through Bernardo. I look at all these things, and I'm saying that maybe we should be taking a new direction, should be giving some direction to the courts. Can you argue my position?

Mr. Michael Zigayer: I'm going to let Michael answer this one mostly.

The Chair: That's exactly what Mr. Roy would have done.

Mr. Michael Zigayer: That's exactly what he would have done.

Mr. Michael Pierce: Which Michael?

Mr. Michael Zigayer: I want to just indicate to you that when we started our work in 1993, we were exploring all sorts of options. They included taking a sample at the time of arrest, as the Canadian Police Association suggests. That would be with an analysis immediately so that you can use it as an intelligence tool as opposed to really being something that you need for determining bail.

Another was whether you should be going by way of indictment or other things, because even with today's technology, those types of things can't be done. They will take time. In use for intelligence purposes, for determining whether the person was linked to another offence that you didn't even know about, it's something that we will know for sure following conviction—if there is a conviction—because it will be matched against the data bank.

We looked at the Canadian Police Association model. We looked at things like collection at the time of both arrest and charge and not analysing it, holding it back until there was a conviction, and if there wasn't a conviction, throwing out the sample. Would that minimize or reduce the exposure to charter risk? Would it reduce or minimize somewhat the intrusion into the privacy of the suspect who is ultimately acquitted?

• 1650

On the other hand, if you had already collected at the same time as fingerprinting and photographing, there would be an administrative saving. You wouldn't have to go through all this series of orders that we make now, following conviction. You'd have it already. The judge would simply hear whether or not it should be included in the data bank, maybe, or it would be automatic, depending.

We looked at many types of options. Ultimately we were obliged to recognize that in light of judicial pronouncements dealing with privacy rights and search and seizure, the proposal with the greatest likelihood of charter viability, of surviving a charter challenge, was the one that's now proposed in Bill C-3.

Mr. Michael Pierce: Perhaps I can speak in my personal capacity for a minute as opposed to as a representative of the Department of Justice. I am concerned about providing legal advice on behalf of the Department of Justice to the committee. Normally we provide information but not conclusions, and you're asking for a conclusion to some degree.

So this is in my personal capacity. Appreciating that every year I am one of the first people skating on the canal, I would not skate on that ice.

The Chair: This is my lawyer Michael, and this is my other lawyer Michael.

Some hon. members: Oh, oh.

Mr. Michael Pierce: Exactly.

In my personal view—

Mr. John Maloney: And why not?

Mr. Michael Pierce: —if you took it at the time of arrest the court would say you have a perfectly acceptable tool that meets all of the constitutional safeguards we have established from the very inception of the Charter of Rights. That tool is the DNA warrant scheme that allows you to take samples at the time of arrest where you've met the safeguards that the courts have insisted upon repeatedly, that the courts have said are the bedrock of our constitutional protections.

The Hunter and Southam case is the case in the area, and says unequivocally that if you want to conduct a search or a seizure, especially one involving an intrusion into bodily integrity—and it specifically addressed bodily integrity at the time—you need prior judicial authorization where it's for the purpose of a criminal investigation. That's what we have in this instance.

As a result, we took great care in developing that warrant scheme to make sure that it had not just prior judicial authorization but also all of the possible safeguards we could include to make sure the court would uphold it. As you may be aware, the lower courts have started reviewing the warrant scheme, Bill C-104.

In at least two courts they have upheld the scheme overall, with the exception of the taking of hair samples. It was not a slam dunk by any means when the court reviewed the warrant scheme. Good arguments were raised and strong arguments were made by defence counsel that even that warrant scheme was not constitutionally sufficient, that a higher standard than reasonable and probable grounds that an offence has been committed and evidence of that offence will be provided by the DNA sample...was urged on the court. There are statements in the Supreme Court that support the conclusion that maybe a higher standard would be appropriate.

Nevertheless, at the end of the day, the lower courts have looked at the entire package we have for that warrant scheme and have said that given all of the safeguards included, that scheme was justifiable. The Supreme Court itself, while not carefully reviewing it, has at least commented on the warrant scheme to say, you know, that looks pretty good.

• 1655

So in light of the warrant scheme, I would go that route. You will be able to serve most of your purposes by taking samples following conviction when the presumption of innocence no longer holds and you can say, “Yes, individual, you've now been convicted of this offence and we require you to provide a sample.”

Mr. John Maloney: Without a warrant.

Mr. Michael Pierce: Without a warrant.

Because you've essentially had the judicial hearing, which was the trial, and that now says, “In these circumstances, we've heard all of it and you're no longer presumed innocent. You're guilty and we'll take the sample.”

Mr. Michael Zigayer: Still, the order is essentially the equivalent of a warrant because you have to go through the process in the secondary designated offences of either making the application to the court or deciding not to, if you're the crown. And in the case of primary designated offences, again there's a discretion. It's not automatic. We think the cases will be few and far between where a convicted offender can satisfy the court that it should not make the order for a primary designated offence. On the other hand, there are many times when the provincial crown—largely the provincial crown—will decide not to make the application in respect to a secondary designated offence.

Mr. John Maloney: Thank you, Madam Chair.

The Chair: Mr. Discepola.

Mr. Nick Discepola: I have three short points. One is that with respect to the order, there's an exception, which is one where the person's privacy and security would be “grossly disproportionate to the public interest in the protection of society”. I wonder why we have that exception in there. Could it lead to inmates and others abusing that and pleading under that criteria for exemptions? Why did we put that in?

Mr. Michael Pierce: We put that in to make sure the scheme was constitutionally sustainable. The court has repeatedly said that when you're talking about, first of all, a search or seizure, which the taking of a sample constitutes, courts require residual discretion for the extreme case to be able to not order a sample.

And we have a case called Baron, in which the Supreme Court struck down a search and seizure scheme on the basis that it didn't give any discretion. It said “you shall order the search warrant”, and the court said, “that's not constitutionally acceptable”. That was the first stage.

The court has also indicated in a number of other statutes when reviewing other statutes that discretion is important to saving the dangerous offenders scheme that we've heard some talk about, where we find designated offenders to be dangerous offenders. That scheme was upheld by the Supreme Court, in part because there was discretion not to make a dangerous offender's order. So this is a common thing.

The next thing is that in creating this discretion, we set the standard as high as can reasonably be set. It is a standard where the privacy and security of the person will be impacted upon “grossly disproportionate” to society's interest in the protection and the due administration of justice.

That standard of gross disproportionality is a standard that, again, we see coming up in the case law and in the court itself, so we know what it means. It doesn't just mean, gee, my privacy is being invaded, my security of person is being invaded, and I don't want to have to give a sample. It is only where it would effectively shock the conscience of the Canadian people that a sample would not be ordered. This is a standard well known in law and well known to the courts, and they are certainly capable of applying it. There is no indication that they will apply it as a matter of course.

In fact, the standard is only rarely met. Off the top of my head, I can think of only one Supreme Court of Canada case in which the standard was met. That's just off the top of my head. And I can think of numerous cases in which the standard has not been met, even in what seemed to be compelling circumstances.

• 1700

By setting the standard there, we have essentially said to the court that we're not going to leave it to the court to set the standard. As a constitutional matter, the court would carve out its own discretion and would set the standard, and it might well be a standard that's lower than gross disproportionality. If that were the case, far more applications might succeed.

The final reason is that if somebody can meet that test, that their privacy and security of the person is impacted in a manner grossly disproportionate to society's interest in protection and the administration of justice, if they can meet that test that we put in the legislation, they would definitely be able to meet the constitutional standard required to find that provision making the order unconstitutional.

Mr. Nick Discepola: But what I was concerned more about is the likes of people like Olson, people who will exploit that, automatically apply under that test, and cause a bottleneck somewhere.

Mr. Michael Pierce: They would be able to apply for a constitutional challenge in any event. If we hadn't set the standard, they'd be going to court bringing a constitutional challenge.

Mr. Nick Discepola: I have two other small points. I notice that we don't have any provision in the legislation for the destruction of any DNA samples from people who voluntarily supply the sample, or from innocent victims. Was that an oversight, or are we just leaving it to the discretion of the police authorities to dispose of those samples? What was the rationale for not addressing it?

Mr. Michael Zigayer: I guess this takes us back again to the development of the warrant scheme. We were developing a scheme that would give authority, through the courts, to the police to compel a suspect to provide bodily substances for forensic DNA analysis. The notion of a Vermilion case occurring wasn't seen as our main focus. In fact, I can't remember if we ever did discuss something like that happening.

Mr. Nick Discepola: I'm thinking of a situation in which a husband has to provide a semen sample, for example, to exonerate himself.

Mr. Michael Pierce: In that case—

Mr. Michael Zigayer: All right.

In a normal course of investigation, that will never get to the data bank. That's held at the level of the regional crime lab. I think Dr. Young said how, if he had a case like that before him—one in which you had to take samples from people who might reasonably have been on the site or have left DNA around—you would want to exclude these probably innocent people from consideration as suspects, so they volunteer samples. This is exactly what happened in the Manning case.

I mentioned Michael Manning earlier. Both he and his son volunteered samples so that they would be excluded as suspects in this case, because I understand they were present in the house at the time of the murder.

For Dr. Young, I think the normal course is that once the analysis has excluded these people, they are excluded and substances are destroyed. Whatever is left of the bodily substances is destroyed. It's not used any more.

Mr. Nick Discepola: But what I'm saying is that there's nothing in the legislation obligating that person to destroy the sample.

Mr. Michael Zigayer: You're absolutely correct, there is nothing in the legislation. But as I understand it, it is the practice of the laboratories to get rid of that stuff.

Mr. Nick Discepola: To get rid of it.

Mr. Michael Zigayer: Dr. Young advised me of that because I was curious. What is it that you send or would send to this national DNA data bank? What would you send for inclusion in the crime scene index? He said he wouldn't be sending the DNA profile of a volunteer. What he needs to have identified is this unknown bar code, the DNA profile of his as yet unidentified suspect.

Mr. Nick Discepola: My last question is a hypothetical one, and it's with regard to retroactivity again. Under the CCRA review that this committee's going to be undertaking over the next year, if in its wisdom the committee decided that we would do a comprehensive identification of all inmates in federal institutions, including fingerprinting, photo ID and DNA samples, notwithstanding costs and so on, what are the charter implications of such a recommendation?

• 1705

Mr. Michael Pierce: Certainly there would be a high charter hurdle to get over. In effect, it would be no different from...it would be possible to include that in this legislation. You would have the problem of requiring a search or seizure without individualized grounds to believe a particular offence has been committed and so on and so forth.

So those are the kinds of considerations. If you're talking about doing it in the context of a CCRA review for correctional purposes, you are going to have a slightly different analysis, because now you're going to have extra considerations. You're going to have those correctional considerations, which do factor into your assessment of the reasonableness of the scheme.

I would hesitate to speculate beyond that without some time to assess that kind of proposal.

Mr. Michael Zigayer: Again, he'd be speaking in his personal capacity.

Voices: Oh, oh.

Mr. Michael Zigayer: I would like to respond to your first question, because it had to do with that provision, that discretion, we built into the system with respect to the primary designated offence. It's hard sometimes to think of the exceptional case.

I'm not going to suggest that this would be an exceptional case, but not too long ago we had the case of Mr. Latimer out in Saskatchewan, who has been convicted of what is a designated offence. If that happened prospectively, might he not say this was an exceptional circumstance? Would he not try to demonstrate that the order should not be made in his circumstances because he met the criteria?

I don't know if he would or he wouldn't make the application if conviction occurred in the future, and I don't know whether he would or wouldn't be granted that exemption, whether he would be able to, but I want to suggest that there are cases—and we may not be able to foresee all of them now—where that discretion will be necessary, and necessary to the preservation of the entire scheme.

Mr. Nick Discepola: Do I have time for another question?

The Chair: I have two others. You are, after all, the parliamentary secretary, so we can come back to you.

Mr. Lee.

Mr. Derek Lee: Thank you.

You referred to the presumption of innocence as a factor when we finally get around to asking an individual for a sample after a conviction. Now, at that point in time, after a conviction, he or she is no longer presumed innocent. They've just been convicted.

Mr. Michael Pierce: That's correct.

Mr. Derek Lee: So I'm a little bit confused about the relevance of the presumption of innocence at that point. You're saying that it's functus, finished. You're no longer presumed innocent. However, the reason we're collecting the DNA sample is not for the purpose of figuring out whether they committed the crime for which they've just been convicted; it's for all of the investigative purposes for all of the other crimes for which they're already presumed innocent.

Mr. Nick Discepola: Can I jump in here? My question was related to this.

Mr. Derek Lee: Okay.

Mr. Nick Discepola: The first thing you would do, though, Derek, is go to your crime scene index and relate all the crimes that have been committed by the same person.

Mr. Derek Lee: For which they're presumed innocent.

The Chair: That's right.

Mr. Derek Lee: So I fail to understand the role of presumption of innocence in your factors when in fact the purpose for which we're going to use the DNA is for all these other things for which they're presumed innocent.

If you had any concerns about giving evidence here as an employee of the Department of Justice, let me assure you that all evidence you provide here is privileged. You may not be charged. You may not be sued. You may not be disciplined. Any move to do anything like that is a contempt of Parliament.

So if you would give me a call if anything like that should happen over the next little while—

A voice: He's getting different advice right now.

Mr. Michael Pierce: Are you suggesting I need that?

Voices: Oh, oh.

Mr. Derek Lee: Please be assured.

The Chair: However, at all material times we know which Michael was speaking.

• 1710

Mr. Derek Lee: I left this issue of my inability to understand why presumption of innocence as a concept was relevant for all these other purposes for which we would use the DNA sample.

The Chair: Let's take a run at this.

Mr. Michael Pierce: When you're taking the DNA sample at the time of arrest, it is in regard to a specific offence you are investigating. You are presumed innocent of that specific offence, and in the context of this the sample would be taken and your presumption of innocence would be relevant.

Following conviction you are no longer being investigated for a particular offence, so there's no need to even enter into the discussion about the presumption of innocence in regard to a specific offence. Now we take a sample because you've been convicted and we now know there is some risk with you. You commit offences, and we know that. You just got convicted of one, so we can take a sample from you. Yes, it will go into the data bank and possibly identify past offences, but we haven't identified a particular past offence we're investing you for.

It's also serving the very important purpose of deterrence against future offending. We have your sample now and it serves a useful purpose in deterring you. It may also help us in investigating a future offence should one occur. We're not presuming you've committed one because we don't even have a particular offence in mind.

So that's the role of presumption of innocence, and I know that's kind of convoluted. It's certainly not the only consideration pre-conviction versus post-conviction. It's just a consideration.

Mr. Derek Lee: Now let's take that approach to collecting it from someone who has been convicted of a criminal offence. Let's say we have somebody arrested on a serious charge who has been convicted of a criminal offence within the last year or two. Is there a problem dealing with that individual at the time of charge? That person already has a criminal record, has been convicted of a serious offence before and is charged with a serious offence now, yet the procedure we're looking at in this bill doesn't allow us to obtain a DNA sample without a warrant. I know we can get one with a warrant.

You have a person who is no longer presumed innocent of the previous crime, even if he or she was convicted ten days ago, and suddenly this person is in front of us again charged with another serious crime. My gut tells me we ought to be getting a DNA sample and yet this bill doesn't allow for that. Where a person convicted of a criminal offence is back again on another matter and charged with another serious offence, why shouldn't we collect a DNA sample at that point?

Mr. Michael Zigayer: We're not saying you shouldn't, we're just saying to go through the warrant scheme.

Mr. Derek Lee: Get a warrant.

Mr. Michael Pierce: There are additional concerns if you're talking about somebody who was convicted of a designated offence before the coming into force of the act, because if this person is convicted subsequently, we have a scheme to take his or her sample. To not have the sample, it must be before the coming into force of the act. That means we're operating retroactively. If we're going to operate retroactively, we know there are heightened constitutional concerns, because there are long-standing principles against not imposing further sanctions flowing from conviction after the person has been finally sentenced. In your scenario, the person would have to have been finally sentenced.

There's a concern that at the time of commission of the offence and conviction the person had no notice of the risk of providing a DNA sample, so there are super-added concerns that distinguish your situation that would make it prudent to get a DNA warrant.

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Mr. Derek Lee: And all the while, of course, in this discussion you seem to be characterizing DNA sampling as a penalty or additional penalty when it's possible—I hope you'll admit—to view DNA sampling as other than a penalty imposed on somebody, but rather a process that the state will require a citizen to be subjected to, for justifiable reasons, vis-à-vis the charter.

Mr. Michael Zigayer: I think I could start and my other brother Michael will finish.

I agree with you that we shouldn't perceive this as a penalty but as a consequence of conviction, as I would suggest a firearms prohibition order could be viewed. It's a consequence of conviction. We think of that more in terms of part of the sentence. You get a certain term of imprisonment or some other disposition, you could even be discharged, and the court might still make a firearms prohibition order.

Similarly here, you could be convicted or discharged of that designated offence and still be subject to the requirement, under one of these orders, to provide a bodily substance as a consequence of the conviction. I remember that one of the witnesses, I think from the Criminal Lawyers' Association, was wondering why it was that we included or permitted the making of orders against persons who were discharged. Well, it is just as we do in firearms prohibition orders against persons who have been found guilty of the designated offence.

What happens, though, in the case of a discharge is that there's an alternative to conviction, which is the discharge, but the person has been found guilty. Similarly in the Young Offenders Act, young offenders are found guilty of the offence and then there's a disposition that flows.

Mr. Michael Pierce: I would echo what Michael said. I certainly made all effort not to characterize it as a penalty or punishment but, rather, as something flowing from the conviction, an aspect of sentence but not necessarily a punishment or penalty per se.

Mr. Derek Lee: Thank you.

The Chair: Mr. Ramsay, did you have something?

Mr. Jack Ramsay: Yes. You have highlighted, more than once, the seriousness of taking bodily samples from individuals, and that this is a bar to a charter shield for this kind of legislation. Yet we do have statutory authority to take breath samples and in our prisons to take urine samples. To me, an inconsistency raises its head here. As a result of that, I don't know what to really do with some of your testimony here today where those inconsistencies arise.

In the presumption of innocence as well, the very fact that we do have a data bank for fingerprints, and we're now developing a DNA data bank, the fact that the police will be able to use the fingerprints or, say, the DNA sample to search against myself, doesn't have anything to do with presumption of innocence. If it does, it's violating it immediately they begin to run the sample through the whole area or the whole bank upon everyone who has paid their penalty, perhaps, and gone. Some of them might still be in jail, but certainly they are not charged or even under arrest for the alleged offence. Yet without regard for presumption of innocence, the fingerprints can be used, the fingerprint section can be used, and a data bank will be able to be used.

When you raise these issues—in the first example I gave about the samples—it's an encroachment upon the, as Peter Mancini said, sacrosanctity of the human. Well, it's happening now with statutory authority and it's not a violation of the charter of rights, according to our courts.

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Again, when you raise the issue of presumption of innocence—and I think Mr. Lee has covered that quite well—and as I listen to the argument or the debate and the discussion, I wonder about these issues that you're raising in these particular areas, because I see the inconsistency that exists.

Do you wish to comment?

Mr. Michael Pierce: Certainly they are complicated legal areas, and at times—I certainly haven't intended to do so—it's possible that I've given an indication that could be taken as inconsistency in my views or position. Let me address them, though, one at a time.

In terms of taking samples, I have not suggested and I would be loathe to suggest that taking of bodily samples cannot be done in a constitutional manner. It certainly can be. The DNA warrant scheme, in our view, is a constitutionally sound process for taking of samples. The DNA data bank that we have proposed here in Bill C-3 permits the constitutionally sound taking of samples. There are other places in the Criminal Code where the taking of bodily samples is permissible, and as you say, in a corrections context there may be other situations. I can't speak to those specifically.

I know there's conflicting jurisprudence on the situation but I haven't looked at the latest cases in the area. So certainly there are times when you can take bodily samples in a constitutional manner, but there are times when it raises constitutional problems, and it's because the taking of samples requires the greatest possible charter safeguards, according to the Supreme Court of Canada, that we have to be cautious in some of those areas. We may have to make sure the safeguards are in place.

Mr. Jack Ramsay: My final question has to do with the test for the retroactive taking of DNA.

You've entered that door, yet it seems to me that you're rather sensitive about the constitutionality of the distance you've gone through that door, even with those two areas, and because of that you're reluctant to go further. Is this perhaps a test? Within the bill, are you perhaps testing the constitutionality of entering that door?

Mr. Michael Pierce: I would not want to put it in terms of a test or in terms of whether that is what I've recommended or would suggest. But certainly it will serve as a test as to whether this is a road we can go down and how far we can go down it. We have some comfort in what we have done so far in the scheme, as it is proposed with the two categories of dangerous offenders and what I'll loosely refer to as repeat sexual offenders. We have good arguments to make in defence of that.

It may be that down the road there will be possibilities to expand upon it, but it is certainly new territory.

Mr. Jack Ramsay: Again, we saw the demonstration here when the Canadian Police Association appeared and we saw the taking of fingerprints and the taking of the three areas of DNA, and then we saw the breathalyser where they have authority, by statute, to stick something in our mouths and tell us to blow and blow until they say stop.

If we have the statutory and constitutional authority to do that under certain circumstances, then I think I have to share some of the concern expressed by the chair. I have difficulty seeing the danger here that is being expressed, because there has been some ground broken that I don't think is being recognized in some of the testimony you're giving here today.

Mr. Michael Zigayer: Michael is much more capable than I to address the charter issues here, but even with my limited knowledge of the area I would suggest that there may be differences that justify different justifications, different approaches dealing with different issues. That sounds pretty obtuse.

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Let me just say that in the case of impaired driving, the carnage on our highways, the impact it has had on the population, the many, many people killed and injured as a result of impaired drivers, the whole context is examined and considered by the court in deciding whether a certain scheme meets charter muster. You are quite right that in the area of impaired driving and the breathalyser, there is no judicial authorization prior to the taking of that breath sample from you.

There is in the case of the taking of a blood sample. Suppose that because you were injured in the accident or were unconscious the police couldn't obtain a breath sample from you. They would have to apply to a judge to get an order to take a sample of blood. So there is some traditional intervention there, but in the general context you're absolutely right.

So what justifies that? That's the question. It is the context of the problem that the legislation is intended to address, and other factors.

The context of the DNA warrant scheme is slightly different.

I won't go any further than that. I'll leave it to Michael.

Mr. Michael Pierce: It is certainly recognizing the differences. To begin with, there is no question that some ground has been gained as a result of jurisprudence in regard to, for example, the taking of breath samples. We've seen considerable developments in the law in that area.

There are some important differences, though. The first is that DNA is still a new technology and the courts are cautious when entertaining the use of new technologies and have special tests for the admission of new technologies into court. The taking of DNA has different risks and concerns associated with it than the taking of a breath sample. A breath sample indicates, essentially, the amount of alcohol consumed. It doesn't indicate anything else about me. The taking of DNA is capable of indicating a great deal more about me. That greater informational content is one of the reasons that greater safeguards are required.

There is this special circumstance having to do with the possibility of getting warrants to take breath samples that gives rise to certain difficulties that the courts have recognized and have accepted then as a result. It's simply a timing question. We know that alcohol dissipates and we have to get that sample quickly. Courts have recognized timing as a factor in assessing the constitutionality of the scheme. That problem doesn't exist with DNA. We can get that warrant; the DNA is not going anywhere.

I don't want to go through all of the differences, unless you'd like me to, but that gives you some flavour for the different circumstances between taking of breath samples and taking of DNA samples.

Mr. Jack Ramsay: That's all. Thanks.

The Chair: Thanks to both of you. You can tell Mr. Roy that we won't be complaining that he wasn't here.

We'll adjourn now until tomorrow at 11 a.m.