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]

Thursday, March 26, 1998

• 0923

[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We are to do clause-by-clause on Bill C-3, but before we start—and I'm mindful that we have guests here—I want to get your sense of two things.

First I want you to keep in mind that we have also before us a review of Bill C-104 from the last Parliament. I made a bit of an executive decision, which I talked to the steering committee about, and I asked Phil to go ahead and draft a report for us to look at. We'll get it circulated, and I hope you will take a look at it.

Basically it comments on the fact that Bill C-104 was substantially amended by the bill we're dealing with today in clause-by-clause. It recommends that we put the two together to be reviewed at the future date that is contemplated in the present DNA bill. So perhaps you would take a look at that.

Second, because of the vote the other day, we missed starting our future business meeting. I'm going to recommend we do it on Tuesday morning, but in the meantime we have to do clause-by-clause on Bill S-5 next week. I would like to get your sense of whether you want to do it Tuesday or Wednesday. I haven't seen any amendments floating around, so I'm just trying to put you on notice that we should get to work on those.

The Bloc member has a problem on Bill S-5. Since she's not going to be here, we undertook with her that if possible we would do it by Wednesday or Thursday so she could participate. She's been a substitute member for that bill, and she'd like to see it finished.

• 0925

Is Wednesday afternoon for Bill S-5 okay with everybody?

Some hon. members: Agreed.

The Chair: Thanks. We have some consensus there.

Get your amendments done. If you want to have a chance to discuss them, please let me know and I'll try to facilitate a meeting at least with some members so that we can work through our amendments. I think those who are particularly interested in the Criminal Code aspect and its evidence aspect might want to have a conversation with Mr. Lee, Mr. MacKay, me, or any of the other members who are interested in those sections.

We will now start the clause-by-clause consideration of Bill C-3, an Act respecting DNA identification and to make consequential amendments to the Criminal Code.

We have the bill in front of us. We are now at clause 1. The recommendation is that consideration of clause 1 be postponed pursuant to Standing Order 75(1). Luc is going to explain that to us.

Oh, shall I go to clause 2? All right. We'll go to clause 2.

(Clauses 2 and 3 agreed to)

The Chair: Does the Bloc have an amendment on clause 4?

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): I will wait, Madam Chair. I will move the amendment later. But I can withdraw it, Madam Chair.

[English]

The Chair: The NDP aren't here. I was told they would have one amendment on clause 4.

Are there any amendments that would be consequential to the NDP amendments on clause 4?

(Clause 4 agreed to)

The Chair: Are there any amendments on clause 5?

For those of you who haven't claused by claused with me before, if I'm going quickly it's because I think there aren't any amendments, not because I'm trying to railroad. You can always stop me if you're brave enough to try.

Mr. Jack Ramsay (Crowfoot, Ref.): What are we doing with the NDP motion?

The Chair: Well, they're not here. We've called their office, so we now have to move forward. There are no amendments that are consequential, so if there's a problem and they come back into the room, I'm sure that with unanimous consent we could listen to what they have to say. In the meantime, if they're not here—

Mr. Jack Ramsay: Is the clause then carried regardless of—

The Chair: The clause carries, yes.

We're now at clause 5. I'll try to slow down. Are there any amendments?

[Translation]

Mr. Richard Marceau: I had an amendment, Madam Chair, but I withdraw it.

[English]

(Clause 5 agreed to)

The Chair: The Bloc had an amendment, but it's been withdrawn.

Next is clause 6. No, let's go back to clause 5.

Mr. MacKay, did you have some amendments on—

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): There's a consequential amendment to clause 9.

• 0930

The Chair: Clause 5 is a consequential amendment to clause 9. Can we just go back to clause 5 then and say we're skipping it for the moment?

(Clause 5 allowed to stand)

The Chair: We'll go to clause 6, which is BQ amendment no. 3.

(On clause 6—Communication of information)

[Translation]

Mr. Richard Marceau: I have an amendment. Do I have to move it?

[English]

The Chair: Did you want to argue the amendment or speak on it?

[Translation]

Mr. Richard Marceau: It is a very simple amendment. Regarding the protection of privacy, the aim of the amendment is to ensure that the information that can be transmitted to a foreign government or a foreign police force—the FBI, Interpol, some other body- can only be communicated to a government that has fairly rigid guidelines on the protection of privacy. There has to be an agreement between the Government of Canada and the foreign government before any information is transmitted. That's it. It's as simple as that.

[English]

The Chair: Mr. Discepola, did you want to speak to that?

[Translation]

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): In our opinion, the amendment is useless because paragraph 8(2)(f) of the Privacy Act already exists, specifying that the communication of information of this sort is authorized only if there is a pre-existing agreement between Canada and the foreign government. Subclause 6(5) of the Bill also specifies that an agreement or a treaty must exist with another government authorizing solely the communication of information on a profile and solely for the purposes of the investigation or prosecution of a criminal offence.

We think there is already enough protection, under both the Privacy Act and Clause 6 of the Bill.

[English]

The Chair: Did you wish to respond to that, Mr. Marceau?

[Translation]

Mr. Richard Marceau: Nevertheless, I would like to move my amendment. I believe that the fact of adding further protection in a bill dealing with a DNA bank would not hurt. I understand the position of the government, but I insist on moving my amendment.

[English]

The Chair: Are there any further comments?

Mr. Ramsay.

Mr. Jack Ramsay: I heard the government witnesses on this and I heard the parliamentary secretary's comments this morning. Although I think the protection is there, because of the fact we heard witnesses who expressed concerns in this area, and as long as this amendment is not interfering in any way with what Mr. Discepola has told us, I would not have any objection to this going into the act. It's not going to do any harm and it may reassure some of the people who expressed concerns in this particular area.

The Chair: Is there any further discussion?

Mr. MacKay.

Mr. Peter MacKay: I would echo those remarks. I don't see any difficulty at all in having a further clause that emphasizes the need for a reciprocal agreement with other countries. That's certainly been broken in the past by this country, but we should have something in there.

The Chair: You're getting good. You must be running for something.

Some hon. members: Oh, oh!

The Chair: You didn't think you were going to get through today without it, did you?

Mr. Peter MacKay: No, I knew that was coming.

The Chair: Does anyone want to comment further? I'm going to refer to it as BQ amendment number 3 to clause 6. Did you want a voice vote or did you just want to signify?

• 0935

[Translation]

Mr. Richard Marceau: Vote by role call.

[English]

(Amendment negatived—See Minutes of Proceedings)

(Clause 6 agreed to on division)

(Clauses 7 and 8 agreed to)

The Chair: We have a new clause 8.1. Who will move this? Mr. Maloney moves this amendment.

Mr. Discepola, do you want to give us some background here?

Mr. Nick Discepola: This motion creates a new clause in the bill to clarify the access to information in the crime scene index that shall be permanently removed. We had testimony before that only the link and the access to the link, which was electronic, would be removed. After the testimony we heard that they could be permanently removed. This addresses that concern.

We also had testimony that in the case where voluntary information and a victim's sample was given, for example, we would permanently remove those profiles and those samples also. It was the testimony we heard from the Quebec bar that addressed this.

The Chair: So it addressed some privacy concerns we heard.

Mr. Nick Discepola: That is right.

Mr. Jack Ramsay: I have some concerns with this. This would demand the removal of a DNA profile from a bodily substance obtained from a victim of one of the designated offences. I would like to ask our parliamentary secretary this question. Inasmuch as we are seeing a series of violent offences committed within gangs, that means that if an offence has been committed against a gang member and that gang member is the victim, this clause would have that DNA sample removed from the bank. It would deny the police the benefit of having that individual's DNA profile in the bank. Do I understand this right? Would your amendment do that?

• 0940

Mr. Nick Discepola: Well, you're giving a hypothetical example that I'm having a hard time following. What we're asking is this: if you are a suspect and you have been cleared, why should your profile or your sample be stored?

Mr. Jack Ramsay: All right, but in my example, if the victim is a gang member—which is occurring in this country—and is known to be such a gang member, what this would do is deny the police access to the DNA sample for further criminal activities the individual might be involved in.

Mr. Nick Discepola: It's not a crime to belong to a gang or an association, so how could you...?

An hon. member: It should be.

Mr. Jack Ramsay: It is. The law is there.

An hon. member: No, it isn't.

Mr. Jack Ramsay: As long as I understand it fully, this amendment would mean that if a gang member was the victim, the profile would be removed. Is that right?

Mr. Nick Discepola: Yes.

Mr. Jack Ramsay: Okay. That's all I wanted to clarify.

The Chair: Is there any further discussion? No? Shall new clause 8.1 in government motion G-1 carry?

Mr. Jack Ramsay: On division.

(Amendment agreed to on division)

(On clause 9—Information to be kept indefinitely)

The Chair: Who moves G-2?

Mr. John Maloney (Erie—Lincoln, Lib.): I so move.

The Chair: Mr. Discepola, did you wish to comment?

Mr. Nick Discepola: Madam Chair, it's a technical amendment to subclause 9(2), which reads:

Information in the convicted offenders index shall be rendered inaccessible

We heard some concerns expressed during testimony that it might be possible to reaccess electronic information that had been removed from the databank. From the testimony we've heard, this is no longer possible. To clarify the situation, we're therefore saying that instead of rendering it inaccessible, access to the index shall be permanently removed. This clarifies it and makes it stronger.

The Chair: So it responds to a privacy concern as well.

Mr. Nick Discepola: That's right.

The Chair: Any further comment on G-2?

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Mr. Ramsay, go ahead.

Mr. Jack Ramsay: Thank you, Madam Chair.

This is a minor amendment. It's found on page 5, line 26. It would simply change the words “three years” in line 26 to “five years”.

The Chair: Did you want to explain it as well?

Mr. Jack Ramsay: Yes. Our opinion is basically that it should be extended from three to five years. Basically, I consider three years to be not long enough, and we want the information in the convicted offenders index rendered inaccessible after a five-year period instead of a three-year period.

The Chair: It would be consistent with getting a pardon.

Mr. Jack Ramsay: Yes, we think it would be consistent with other legislation.

The Chair: Is there any response to that?

Just so you know, colleagues, apparently Mr. Mancini was in Nova Scotia for various “reasons”, and he elected not to fly back until this morning.

An hon. member: He's Speaker of the legislature down there.

The Chair: Just so we're very clear, these amendments aren't necessarily lost. He can introduce them at report stage. I say that just in case anybody is feeling guilty about proceeding without him.

Mr. Discepola, did you want to respond to Mr. Ramsay's motion?

Mr. Nick Discepola: Yes, Chair.

Increasing the waiting period from three to five years in the case of conditional discharges would create an inconsistency with the identical provisions right now in the Criminal Records Act regarding the non-disclosure of the record of discharge. We're just saying three years is consistent, and we maintain that position.

The Chair: Ms. Meredith.

• 0945

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): It's my understanding that for somebody to get a pardon to remove his or her criminal record it takes five years, and I would suggest to you that this should be consistent with that legislation.

Ms. Marian Harymann (Senior Policy Analyst, Policing and Law Enforcement Directorate, Department of the Solicitor General): Under the Criminal Records Act, absolute and conditional charges are dealt with differently, so there's a three-year waiting period for a conditional discharge for the information relating to the criminal record to be sealed, and it's one year in the case of an absolute discharge. But the Criminal Records Act is currently under review by the Department of the Solicitor General and I think these kinds of issues can be examined in that context.

Ms. Val Meredith: If that particular legislation is being reviewed, maybe you could show some foresight by making sure this legislation looks at the terms and makes it consistent with granting a pardon. When that review is done, they can bring that piece of legislation up to date with what is happening here today.

The Chair: That's an interesting suggestion.

Are there any other comments?

(Amendment negatived [See Minutes of Proceedings])

The Chair: Bloc amendment 4.

[Translation]

Mr. Richard Marceau: I withdraw the amendment, Madam Chair.

[English]

The Chair: Conservative amendment 3.

Mr. MacKay, go ahead.

Mr. Peter MacKay: This amendment would simply ensure that if a young person was found guilty or was convicted of an indictable offence, and prior to the expiry of the time that's mentioned in this section is then convicted subsequent of another indictable offence, his or her DNA would continue to be banked.

So it's giving a young person that initial protection under the Young Offenders Act, but if he or she breaches that duty again, then that's it. His or her DNA will be kept. He or she is already protected under the Young Offenders Act initially. His or her DNA wouldn't be stored after 10 years or 3 years, and this would say, “Okay if you go out and commit another indictable offence, that's it, you're going to be held accountable the same as everybody else”.

I think this is where we're moving with the Young Offenders Act in any event, and the government's position I've received is that it's out of line with the Young Offenders Act. The timing is very interesting, because we're going to be looking at the Young Offenders Act very soon. So why not do it now? Why not include it in this particular bill rather than have to come back and change it in six months' time?

The Chair: Mr. Discepola.

Mr. Nick Discepola: Thank you, Chair.

We're saying the Young Offenders Act is under review. This committee is studying it. It's going to propose amendments, so we see no need to pre-empt it or even make a decision on behalf of that committee. If the committee decides to make the change in the future, we will simply modify our legislation as a consequence. But we feel it would be premature for us to prejudge what the committee is going to decide.

The Chair: Are there any other comments on PC amendment 3?

(Amendment negatived [See Minutes of Proceedings]

• 0950

(Clause 9 as amended agreed to on division)

(On clause 10—Storage of bodily substances)

The Chair: Mr. Ramsay, you have a motion.

Mr. Jack Ramsay: Yes, this is a similar amendment. It simply increases the expiry from three years to five years in line 28, subparagraph 10(7)(b)(ii), basically for the same purposes I gave in my earlier amendment.

The Chair: Okay. Comments?

(Amendment negatived)

The Chair: BQ amendment number 5.

[Translation]

Mr. Richard Marceau: Madam chair, I withdraw my amendment.

[English]

The Chair: Thanks, Mr. Marceau.

(Clause 10 agreed to on division)

The Chair: Clause 10.1 is a new clause.

Mr. Discepola.

Mr. Nick Discepola: Let me find the page.

The Chair: Oh, it's an NDP motion. Fine. There is no 10.1.

(On Clause 11—Offence)

The Chair: Clause number 11—

Mr. Richard Marceau: Sorry, what did we do with clause 10.1?

The Chair: Clause 10.1 was an NDP motion. They're not here to offer it. They can do it at report stage. So clause 10 is now carried and there are no additional sections. It carried on division. Now we're at clause 11.

(Clause 11 agreed to)

(On clause 12—Regulation)

The Chair: We have a BQ amendment.

[Translation]

Mr. Richard Marceau: The amendment is withdrawn, Madam Chair.

[English]

The Chair: Thank you.

(Clause 12 agreed to on division)

(Clauses 13 and 14 agreed to)

(On clause 15)

The Chair: We're getting busier. I think clause 17 may make history. Anyway, on clause 15 we have a Conservative amendment first.

Mr. MacKay.

Mr. Peter MacKay: This is again a consequential amendment, Madam Chair, so if we could come back to that when we get to the main amendment.

The Chair: It's consequential to what?

Mr. Peter MacKay: It's consequential to amendment 17, the next section we get to. It has to do with the time of arrest.

The Chair: All right, motion PC-4 will stand.

Mr. DeVillers moves G-3.

Mr. Discepola, do you have some comments?

Mr. Nick Discepola: Yes, Chair, it's really a technical amendment in paragraph 15.(1)(b). The definition of “forensic DNA analysis” currently addresses the forensic analysis of “bodily substances” obtained from persons or the authority, as set out in the bill, for example, as ordered by a judge. However, it doesn't include the forensic analysis of bodily substances found at the crime scene. So to address this omission, we have put forth this change, which would then include a reference to a bodily substance obtained from the crime scene, as set out in 487.05(1)(b) of the Criminal Code.

The Chair: Well done. Is there any response to that? Are there any further comments?

(Amendment agreed to [See Minutes of Proceedings])

The Chair: The clerk is pointing out that amendment PC-4 is not necessary any more, because amendment G-3 targets the same section, Mr. MacKay. If you want to study that for a minute, we won't preclude any further discussion on it.

Mr. Ramsay, Reform motion number 3.

• 0955

Mr. Jack Ramsay: Thank you, Madam Chair.

This would include the following offences within the primary designated offence list:

(v) section 159 (anal intercourse),

(vi) subsection 160(3) (bestiality in the presence of or by a child),

(vii) section 163.1 (pornography),

(viii) section 170 (parent or guardian procuring sexual activity),

(ix) section 172 (corrupting children),

(x) section 173 (indecent acts).

We have heard from some of our witnesses who recommended the inclusion or the expansion of the primary designated list of offences. This one would include and embrace a greater protection for children.

I don't know why it wasn't included in the first place. It doesn't seem to pose any threat to the bill if we expand the list of designated offences to include these offences.

The Chair: Thank you, Mr. Ramsay.

Who wishes to respond?

Mr. Discepola.

Mr. Nick Discepola: Thank you, Chair.

There were two criteria in establishing this. One was the seriousness of the crime, in terms of violent offences, for example. The other one was the likelihood of the DNA evidence being able to be gathered and associated with that type of offence that was created.

Our view, Chair, is that if you include the member's suggested offences you're in essence opening up the door to include many other Criminal Code offences as primary designated offences, thereby rendering the list pretty well meaningless. We feel we're targeting the right...

There are other amendments Mr. Ramsay has put forth that we're willing to accept, but these ones we're not willing to accept.

The Chair: Go ahead, Mr. Ramsay.

Mr. Jack Ramsay: The primary designated offence list does include sexual interference, invitation to sexual touching, sexual exploitation, incest, and so on. In terms of category, I do not see, in the seriousness of offences, much difference in what this amendment would include in that list.

Mr. Nick Discepola: In the case of anal intercourse, for example, the Ontario Court of Appeal has already given a judgment that was struck down. The case of child pornography is another example. The simple possession of child pornography would in essence preclude that we'd have to take DNA evidence just by simple possession. Bestiality, for example, in the presence of a child or a guardian, or corrupting children, or indecent acts—there's no evidence to suggest that you would get DNA samples at these types of crimes.

Mr. Jack Ramsay: But it's not impossible that this could occur.

Mr. Nick Discepola: But if you open it up too large, Jack, I don't know; I think you'd be at risk of—

Mr. Jack Ramsay: What's the threat if we do open it up? It doesn't endanger the bill.

Mr. Nick Discepola: Michael, do you have any legal reasons?

Mr. Michael E. Zigayer (Senior Counsel, Criminal Law Policy Section, Department of Justice): As I indicated at committee, with respect to anal intercourse it's unnecessary, because if you do have a sexual assault that was an anal intercourse, you already have sexual assault that you can proceed under to get the DNA warrant. So it's unnecessary. That's my response to the first one.

Mr. Discepola has quite correctly noted that it's also been struck down as an offence in the Ontario Court of Appeal. I also understand, from comments the other day by my colleague, Michael Pierce, that the Federal Court has also struck it down as an offence.

Just to be perhaps economical in the drafting of the legislation, I would suggest that in terms of sexual assault and aggravated sexual assault, those offences are on the list already. They would cover anal intercourse where it was not consensual or didn't fall within the...

I think that's where I would stop my comments on that one.

With regard to pornography, Mr. Discepola stated quite correctly that it's unlikely that you'll have bodily substances related to a crime of simple possession of pornography.

• 1000

As for indecent acts, again I know Mr. MacKay was very interested in having these offences included on the list because they were of a morally reprehensible nature. The difficulty really comes with those two that I've specified, and also with regard to bestiality in the presence of a child. I read it the other day, and I would suggest that this offence is really not something we ever see charged.

An hon. member: So?

Mr. Michael Zigayer: I think we'll be reviewing cruelty to animals within the year. Maybe we can bring this one back at that time.

Mr. Jack Ramsay: Well, if I may—

The Chair: Go ahead, Mr. Ramsay, and then Mr. MacKay has a comment.

Mr. Jack Ramsay: You haven't touched on section 170, “parent or guardian procuring sexual activity”; “corrupting children”; or “indecent acts”. Would you preclude all of these from this particular section?

Mr. Michael Zigayer: Essentially 170 refers to a parent pimping, a parent using the phone to pimp, or somehow otherwise communicating to the person who's interested in having relations with his child. You're not going to have DNA evidence. If you want to get a DNA warrant to go after that kind of offence, you're not going to have anything. There's no crime scene sample. There's nothing left at the scene of the crime.

If you're worried about the sexual assault on the child, that's covered off, but the actual pimping is not something that's investigatable through the use of a DNA warrant.

Mr. Jack Ramsay: But what you're saying is that because you're not aware of anything that has come up in the past, there may never arise in the future a situation in which the DNA evidence and sample might be available. That's what I understand you to be saying. If that's true, this will simply never be used if we did include it. It will not harm the act, but it will provide a protection to children that's not there now in case of a future situation arising in which DNA might be applicable.

Mr. Michael Zigayer: Mr. Ramsay, the next one on the list, section 172, “corrupting children” reads:

Every one who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice

—like gambling—

and thereby endangers the morals of the child or renders the home an unfit place for the child to be in

Again, this is something in which I don't think you have DNA. DNA is not a product of those activities, of gambling, of drunkenness. In terms of the warrant scheme, it doesn't make much sense. You have a common list for the warrant scheme and for the databank. Your proposal essentially makes it a primary designated offence for someone to be found drunk in his home. What justifies the inclusion of essentially requiring the court to consider making the order for someone in that state? I think it's excessive.

Mr. Jack Ramsay: Is that your opinion on all of these offences, these sections listed within the amendment?

Do you have the amendment in front of you?

Mr. Michael Zigayer: Yes, I do. I'm just looking now at subsection 173(1):

Every one who willfully does an indecent act

(a) in a public place in the presence of one or more persons, or

(b) in any place, with intent thereby to insult or offend any person, is guilty of an offence punishable on summary conviction.

Moving this kind of an offence into the primary designated offence list...

Subsection 173(2) says:

Every person who, in any place for a sexual purpose, exposes his or her genital organs to a person who is under the age of fourteen years is guilty of an offence on summary conviction.

• 1005

Again, it's not something we're proud to see happen. If somebody stands in his picture window and exposes himself, you're not likely to have any genetic material left where the person viewing—the alleged victim in the case—is going to be. A person could be at the sidewalk.

Mr. Jack Ramsay: I understand that. I understand the example you give. I understand what you're saying. But there are other circumstances that would involve a violation of this offence that might not be as clear as you indicate. It might be a lot more complicated, and the DNA sampling may come into play.

What is the reason for excluding this if it's not going to endanger the bill?

The Chair: I think he's given you a reason. You want another reason. Is that what you're saying?

Mr. Jack Ramsay: Yes, I guess so.

The Chair: These people come here in good faith. They're public servants. I just want to make sure we're being courteous to them, that's all.

Go ahead.

Mr. Michael Zigayer: My final comment is that I have two concerns. One is that the motion proposes the inclusion of these offences in the primary designated list. The second is that in some cases they're unnecessary, because we have provisions in the law already that would cover it off.

Those are my only comments.

The Chair: Peter MacKay and then John McKay.

Mr. Peter MacKay: I want to underline or emphasize the importance of the fact that these offences, as proposed by Mr. Ramsay—and they're the same ones I had proposed for inclusion in the primary list—deal specifically with minors and the protection of minors.

We've heard from a number of witnesses that DNA data banking can be used as a police investigative tool as prevention and as a way to hopefully dissuade an escalation of deviant behaviour in terms of a sexual nature.

We're all adults around this table here. I can give you graphic examples, if you want. You can do a rape kit on an animal. You can get samples of indecent acts if a person is masturbating in public. I mean, that argument that you're not going to be able to do anything physically in terms of collection of evidence... There are, sadly, examples of where you can.

I guess more importantly, if we're talking about the inclusion of a DNA sample from a person charged with one of these offences, even though it may not happen...and your argument about anal intercourse being struck down is a red herring, because it's still in the Criminal Code. The likelihood of somebody being charged with that, you're right, is slim to none, but it's still there. It's still on paper.

My point is, why wouldn't we include these offences, in the slim chance that they might be used, if we are really looking at including, to the greatest extent possible, the ability of the police to collect DNA for the purposes of prevention or the purposes of a match with known samples for persons who are involved in these types of deviant criminal behaviours? Why wouldn't we do that?

Mr. Michael Zigayer: Mr. MacKay, wouldn't you agree, though, that because these types of offences as described may run the range from the stupid towards the more innocent end of the spectrum rather than the really criminal, would it not be more appropriate to put them in the secondary list, where the crown would have the discretion to make the application, rather than the primary list, where, unless the offender can demonstrate why the order should not be made, the order would be made? In other words, there would be a presumptive order being made.

As I said, I have two concerns. One of them is putting it onto the primary designated list.

Mr. Peter MacKay: But are you saying that by including these it somehow belittles the more serious offences that are already in the primary list?

Mr. Michael Zigayer: No.

Mr. Peter MacKay: Because the emphasis here is prevention and hopefully solving some outstanding, more serious offences. We know there is a pattern of escalation when it comes to deviant sexual behaviour. That's been discussed around this table in the context of this bill.

• 1010

Mr. Michael Zigayer: I think those in the primary designated offence list are really the most reprehensible offences: sexual assaults, aggravated assaults, murders, and homicides.

The possession of pornography or the manufacture of it—I will check subsection 163(1)—in my humble personal view, don't belong in the same category.

Mr. Peter MacKay: Well, you've put a slash through all of these, but let's take a look. As for “corrupting children”, “parent or guardian procuring sexual activity” by a child, those aren't reprehensible?

Mr. Michael Zigayer: Drunkenness, habitual drunkenness in the home, is not the same as murder or sexual assault.

Mr. Peter MacKay: Procuring sexual activities by a parent.

Mr. Michael Zigayer: By a parent or any other adult, it's an evil act, but it doesn't, in my respectful opinion, belong in the primary designated offence list.

If you want to look at offences in the secondary list and ask me whether I think they belong in the primary list, I could tell you one or two that I have a personal view about that have to do with terrorism. We have a list, and I believe it's consistent within itself. The primary designated offence list is one that deals with the most reprehensible acts of violence of a sexual nature.

What I was suggesting with regard to anal intercourse is that rather than enter into a debate whether the offence exists or not across the country, the objective of the motion is achieved already by the use of the alternate charge of sexual assault.

Mr. Peter MacKay: But again, that's a red herring. I just want to go back to this “parent or guardian—

Mr. Michael Zigayer: It's part of the motion.

Mr. Peter MacKay: —procuring sexual activity”. Try to explain to a child or a victim who grew up in that environment that this wasn't a primary or important offence to include in this list.

That's if it could have been prevented. Say a person was charged with that, their DNA was taken, and then that was used as a match for an outstanding sexual assault or something else. If that DNA sampling could have been taken at that point in time when they were charged and if that could have prevented future abuse, why wouldn't you do that?

Mr. Michael Zigayer: I'm not aware of any evidence that demonstrates that people who are convicted of being a “parent or guardian procuring sexual activity” are ever convicted of any other offences. I'm not aware of the statistics that demonstrate a likelihood of recidivism of a greater or more serious nature. I am personally not aware of any—

Mr. Peter MacKay: Nor am I.

Mr. Michael Zigayer: Before we move something into a category that is a very serious group of offences, I think it's necessary to have some of the groundwork. I don't think we can argue with any of the ones that are already in the designated offence list.

We can see a causal connection, or a link, between the offences that are there even if they seem minimal as compared to some others. There is a link that you do progress through: minor sexual assaults, invitation to sexual touching, and then to an actual sexual assault on a child or another type of sexual assault.

Mr. Peter MacKay: But using that argument—

The Chair: Mr. MacKay, go ahead, but there are other people who want to ask questions on this.

Mr. Peter MacKay: You see a causal link between invitation to sexual touching, but you don't see a causal link between corrupting children or procuring sexual activity by a parent?

Mr. Michael Zigayer: No.

Mr. Peter MacKay: You don't see a causal link there to escalated activity?

Mr. Michael Zigayer: The person who's pimping is someone who's selling something; he's not someone who is committing a sexual offence.

Mr. Peter MacKay: Pimping for children. You don't see a causal link to an escalated type of deviant behaviour if you're pimping?

Mr. Michael Zigayer: One of the purposes of the data bank is to try to facilitate the investigation and prosecution of a recidivist. As for the person who pimps, even if he pimps again in the future, what DNA evidence is he going to leave? He's using a phone or just meeting somebody on the street and saying—

• 1015

Mr. Peter MacKay: Do you know how many pimps abuse the women they have working for them?

Mr. Michael Zigayer: But this is not the street pimp. This is the person who is a member of the family, isn't it?

Mr. Peter MacKay: A parent!

Mr. Michael Zigayer: Yes.

Mr. Peter MacKay: That's worse.

Mr. Michael Zigayer: If the parent is abusing the child, then there's sexual assault available.

Mr. Peter MacKay: But what if they're charged with this and there are other outstanding sexual assaults that you could make a match with? You could get their DNA as a result of charging them with this, and there are other—

Mr. Michael Zigayer: Ah, but you wouldn't get that. You'd only get it after he was convicted, Mr. MacKay.

Mr. Peter MacKay: Well, according to the way it's drafted now, you're right.

The Chair: Mr. MacKay, thank you.

Mr. John McKay.

Mr. John McKay (Scarborough East, Lib.): Thank you, Madam Chairman.

I'm fairly persuaded by Mr. MacKay's and Mr. Ramsay's point of view on this issue. The reasoning that seems most compelling to me is that in some respects the purpose and point of this legislation is to collect DNA for the purposes of identification for linkages to other possible offences. So the fact that, for instance, on a pornography charge, there may not be DNA evidence left at the scene of the crime is not a relevant consideration. We are taking DNA at the point of a conviction, banking it, and presumably using that banked information to run on other potential outstanding warrants or charges. So I'm not at all persuaded that these are not good ideas or that they shouldn't be included in the list of primary designated offences.

The only argument that gives me any cause for concern is whether it should be in a secondary list as opposed to a primary list, but frankly the arguments you put to Mr. MacKay and Mr. Ramsay don't persuade me at all with respect to not including these items. So I'd like to hear you tell me why you think these should not be included in the primary but put in the designated, because I don't think they should be excluded altogether.

Mr. Michael Zigayer: Certainly ultimately the decision is this committee's and Parliament's. It is my opinion that it would be more appropriate for these offences, if you were going to include them in legislation, to be in the secondary designated offence list. I say that simply because you can see effort has been taken to include in the primary designated offence list the most serious. If you look at what's in the secondary list, there are still some serious crimes there. You have basically a list of terrorist offences and then you have a few others, including robbery and breaking and entering. I think it's more appropriate—

Mr. John McKay: If the point of the legislation is to obtain DNA profiles—if you will, a little “canary in the mine shaft” concept—and suppose, for instance, an individual is convicted of corrupting children or procuring sexual activity for children, etc., and the crown has thrown the book at this individual, so there are three or four charges, and this is really the only one they could get the conviction on, but everybody in that courtroom knows there's something more going on than simply this particular activity, isn't it in the public interest to have that DNA banked, period, end of sentence?

Mr. Michael Zigayer: As a deterrent?

Mr. John McKay: Well, for other outstanding charges or other investigations that might be going on.

Mr. Michael Zigayer: Well, if that were the case, then I would prefer to see the crown make the application than to have it be automatic. I'd be nervous about the wrong type of case going up, especially a case of drunkenness going up, and the court finding that the legislation—

Mr. John McKay: Well, we're not into drunkenness. Your argument is persuasive on anal intercourse. It's a dead charge. But the other lists that are proposed here are something a little bit more than drunkenness or... They are, if you will, pattern offences. Surely to goodness, the point of this legislation is to start to be able to use this as a tool to anticipate offences rather than to come in a little bit too late.

• 1020

Okay, we've drawn out the argument.

Mr. Michael Zigayer: I can't say anything more. If the committee wants to put them in the code, that's the committee's choice, but I would again recommend the secondary list rather than the primary.

Mr. Paul DeVillers (Simcoe North, Lib.): But that's not what's before us.

Mr. John McKay: We could entertain an amendment to the motion if Peter or Jack wanted to do that. It seems to me that's what we're down to.

Mr. Peter MacKay: It's Mr. Ramsay's motion. My motion is exactly the same, but I would be willing to move an amendment to either mine or Jack's—

The Chair: Just before you do, Ms. Meredith wanted to say something and so did Mr. Telegdi. Let's hear everybody through and then I will ask the clerk to take this note to Mr. John McKay.

Ms. Meredith.

Ms. Val Meredith: I'm not sure whether I need to say anything, because I'm agreeing. Mr. MacKay raised my issue. I'd like to know why invitation to sexual touching is considered to be more of an offence society finds abhorrent than indecent acts or corrupting children. What is an invitation to sexual touching? Who gets charged with that? Why would that be there and some of these more serious things not be there? It just doesn't make sense to me.

Mr. Nick Discepola: If I could answer that, this is one thing that hasn't been elaborated on. If you try to include everything in the primary offence in the whole spectrum, from something that is very heinous down to something that is still serious, you'd probably open it up to a charter challenge and then—

Ms. Val Meredith: But with all due respect, I'm asking why invitation to sexual touching is considered primary but a parent or guardian procuring sexual activity, corrupting children, indecent acts, and bestiality in the presence of a child aren't. You're the ones who put invitation to sexual touching on the primary list. I would like to know why you feel that should be on the primary list and these others should not. Why is that more serious?

Mr. Michael Zigayer: I'll get the technical experts who have the Criminal Code in front of them to answer that.

Strange as it may seem, neither myself nor my colleague, Michael Pierce, do anything relating to sex at the office. We don't touch those files.

My understanding is there has been a demonstrated link between the offence of invitation to sexual touching and moving up in seriousness of types of offence. So the first offence might be an invitation to sexual touching, and then it moves on to sexual assault and aggravated sexual assault. I understand there's a demonstrated link and some scientific evidence to support that. That's why it was included in the primary designated offences.

Ms. Val Meredith: So you're telling me there's no scientific evidence that indecent acts are stepping stones up to more serious offences?

Mr. Michael Zigayer: I'm unaware of any studies linking indecent acts to anything else. If somebody is a flasher, essentially—

Ms. Val Meredith: Are you using police records for the studies? I know from past experience that the information of what a person has been charged with does not necessarily represent the original action the individual took to reach that. It is something the crown counsel comes up with that is likely to get through a court system. It doesn't always properly reflect the concern expressed by the police or the investigating officers at the time of the event.

Are you using that kind of statistical evidence, or are you using the charges on which the person was brought before the courts?

Mr. Michael Zigayer: Again, this is second-hand removed. My understanding is there may have been studies done by the Department of Justice or others. These weren't my files. My understanding is that when we looked at this about three or four years ago, the justification for including this was there had been a demonstrated link in this being a precursor to more serious sexual offences in the future.

• 1025

The Chair: Mr. Telegdi.

Mr. Andrew Telegdi: Madam Chair, I tend to be persuaded by Mr. MacKay and Mr. Ramsay. If you look at the Bernardo case, you had pornography involved there; you had corrupting children there. I think if any of the cases broke a little differently I would have wanted those things used. In terms of anticipating possible outcomes on this, I see no problem, and I see it very much as being preventive.

Mr. Jack Ramsay: I recall the vote on this. I'm prepared to let it go at that unless other people have something to say.

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): I wanted to clear up an issue because it's come up in this section and it will probably come up in other discussions. It has to do with this concept of charter challenge. Mr. Discepola, in replying to a question, you suggested that to proceed in a certain fashion here in making an amendment might open the road to a charter challenge. I'd like you to clarify that, because I'm going to suggest to the committee that none of us here should be worried about a charter challenge. Charter challenges happen all the time and they're going to happen forever. So it's not the charter challenge—

The Chair: There's going to be one on this anyway.

Mr. Derek Lee: It's not a charter challenge that one is concerned about. If we're concerned about charter challenges, we should all go home, because everything we're going to legislate is somehow going to be charter-challenged at some time. We even have government programs that finance charter challenges.

What I want you to clarify, Mr. Discepola—and forgive me for leading you a little bit—is that what we're really concerned about here is whether or not what we're legislating is constitutional- or charter-compliant. Have I got that issue correct?

Mr. Nick Discepola: I'll answer it, and I'm answering on a personal level here, Mr. Lee, not on behalf of my minister. The minister has shown tremendous hope in this since day one of trying to get good, balanced legislation. There's no minister in any government I know of who would want to introduce legislation knowing full well after consulting his officials that his or her bill might be judged illegal and as a result have to come back and go through the whole process.

We've done an awful lot of work on this committee. My concern is to make sure we have a good balanced bill that may not be all-inclusive. We've heard different testimony. I think what we're trying to do is come up with a bill that in our opinion will withstand the charter challenges to a certain degree.

I concur with the chairman. We certainly believe there will be challenges sooner or later to some of the sections. However, we're trying to put the odds in our favour.

Madam Chair, possibly as a compromise, if we don't finish this morning, I'd like to come back to it at the end. I will undertake to see if we can possibly put in an amendment to include some of them as secondary offences, if I could have the involvement of the committee.

The Chair: Mr. Lee.

Mr. Derek Lee: With respect, I don't think I got a clear answer here. I'm asking you to indicate to the committee that the government's position here, the government's test, the litmus test, the line, the measuring stick that this committee and the government is using, is not the potential for charter challenge but a view created and expressed here that a provision is unconstitutional or would be found to be unconstitutional. I'm not getting that. I'm hearing, as we discuss this, that the fact that there might be a charter challenge is the reason why we should be warned off amending this bill from its current state. I'm not comfortable with that position.

• 1030

It is not the potential for charter challenge that we have to be concerned about. It is unconstitutionality. I'd like to hear a firmer view from the government advisers and from our own counsel on issues of constitutionality when they come up here.

The Chair: Thank you.

Mr. Paul DeVillers: On that point, Madam Chair, I think it's incumbent on legislators to take this into consideration and act responsibly, not pass laws that we know are going to be challengeable with a possibility of it being successful. Having said that, though, I agree to a certain extent that we needn't be intimidated by the potential of a charter challenge when that is the practice in the constitutional industry we have these days. But I think it still needs to be a consideration when reviewing the legislation. We need to take into account the possibility of it surviving that likely challenge.

Mr. Michael Zigayer: I'll just start and perhaps Michael will join in after me. I think we're not talking about whether there is a risk of charter challenge. It's just the nature of that risk, that the risk might be higher if this proposal went forward as a primary designated offence. The risk of a successful charter challenge might be lower if these offences were included in the secondary designated offence list.

Mr. Michael Pierce (Counsel, Human Rights Law Section, Department of Justice): I would like to express clearly now that what we're talking about is not simply the risk of a challenge. We're talking about, as was just said, the risk of a successful challenge and the degree of risk of a successful challenge.

One of the basic constitutional principles that's included during the review of legislation by the courts is the degree of tailoring of the legislation to ensure that it is both minimally impairing and not over-broad. In that regard, courts have been particularly careful in reviewing the lists of offences where things are based on a larger category of offences.

For example, the prohibition again sex offenders loitering was reviewed by the court in a case called Haywood. The Supreme Court looked at the list of offences at stake in Haywood and considered it over-broad. So that's what happens here. That is what is at issue here. Are we risking stretching the breadth of the provision to a point at which it begins to undermine our constitutional arguments? This means we must be consistent in the principles we use to the greatest degree possible in including a particular offence on the list.

The Chair: Mr. MacKay, go ahead.

Mr. Peter MacKay: I would like to move an amendment. It would be a subamendment to what Jack has proposed. It's the same amendment I moved. It would now read that Bill C-3, clause 15, be amended by adding after line 22 on page 12 the following... The numbers then begin (vii), (viii), and follow down the list.

This would have the effect of putting those Criminal Code offences into the secondary designated list.

The Chair: Let me ask this, and this is not an editorial comment from the chair. It is a point of clarification, or facilitation, maybe.

Mr. MacKay, in your amendment, your original motion, and in Mr. Ramsay's motion, you both include section 172, which is corrupting children. Would you see any movement on perhaps removing that one section? I only say that because it seems to be the sticking point. We're talking about adultery, gambling, and drunkenness, as I read the section, as opposed to...

As I read that section, I think most people would agree that it's pretty old, but I'm just asking.

Mr. Peter MacKay: I have no difficulty with removing section 172.

The Chair: Okay. So the amendment then would read—

Mr. Nick Discepola: While we're negotiating, Madam Chair, could I also negotiate section 159?

• 1035

The Chair: What is it?

Section 159 is no longer... It may be in black and white in the paper, but I don't think you'd want to prosecute it, Mr. MacKay. I know you have only ever had winning cases in your career.

Mr. Nick Discepola: While I'm on a roll—

The Chair: Oh, stop!

Mr. Nick Discepola: —can I take out 163.1 on pornography?

Some hon. members: No.

The Chair: I'd say that little ball just hit the wall. All right.

Do you want to give it a try, Mr. MacKay, with the amendment?

Mr. Peter MacKay: The amendment would read that Bill C-3 in clause 15 be amended by adding after line 22 on page 12 the following:

(vii) Subsection 160(3), bestiality in the presence of or by a child

And then it would go (viii), (ix), and we're deleting section 172, corrupting children, and deleting section 159, anal intercourse.

The Chair: Okay. Do you agree to that amendment?

Mr. Jack Ramsay: I agree with that.

The Chair: Is there any disagreement on this now?

Mr. Discepola? You disagree.

Mr. Nick Discepola: Yes, I do.

The Chair: All right. Let's have a vote on the amendment to the motion first. Those in favour of Peter MacKay's amendment to this motion, please indicate same. Those opposed?

(Subamendment agreed to)

The Chair: Those now in favour of—

An hon. member: I'd like a recorded vote, Madam Chair, on the amendment.

The Chair: You want a recorded vote on the amendment—

Mr. Ramsay: Subamendment.

The Chair: Thank you. Subamendment.

(Subamendment agreed to: yeas 9; nays 4)

The Chair: The subamendment has been agreed to, and now we're on Mr. Ramsay's amendment, Reform-3, as amended. Will that carry on division or do you want a recorded vote?

Mr. Jack Ramsay: Recorded vote.

The Chair: All right. Remember, this is the Reform motion as amended.

• 1040

(Amendment agreed to: yeas 9; nays 4)

The Chair: The motion passes. Good work, Mr. Ramsay and Mr. MacKay—and everybody.

Let me just get some direction from you here. It's 10.40 a.m. We're just going to keep working, but does anyone want to stretch for two minutes and then we'll come back and carry on?

Thanks. We'll rise for two minutes.

• 1041

• 1056

The Chair: Order.

We're at Reform motion 4 on clause 15.

Mr. Ramsay—emboldened by his recent victory.

Mr. Jack Ramsay: And very humbled by it, Madam Chair.

The Chair: Perfect answer, Mr. Ramsay.

Mr. Jack Ramsay: Of course, this is similar to the former motion. I move to amend clause 15 by adding, after line 16 on page 11, the following:

(vi) section 233 (infanticide),

We would like that to be inserted into the primary designated offence area for the same reasons we gave on the former motion. We feel this should be there. Offences involving infanticide, of course, involve the taking of a life, and DNA evidence may be available at the scene. So this is essential as well.

The Chair: Any comments?

Mr. Discepola.

Mr. Nick Discepola: Madam Chair, since he's on a roll, we'll support this one fully.

Mr. Jack Ramsay: Could you have him repeat that?

The Chair: Would you say that again?

Some hon. members: Oh, oh!

Mr. Nick Discepola: Since he's on a roll, we'll support this one fully.

The Chair: Is that enough, Mr. Ramsay? Are you pleased with that?

Mr. Jack Ramsay: I'm pleased with that.

The Chair: All right.

Mr. Nick Discepola: He didn't even say thank you. Did you notice?

Mr. Jack Ramsay: Thank you.

The Chair: Is anyone opposed to—

Mr. John McKay: Yes.

Some hon. members: Oh, oh!

Mr. John McKay: Strangely enough, on the basis of logic, I don't see it as a pattern offence but as a one-off offence. The only argument I see is that you'd put it in a secondary category rather than the primary category, but on the generosity of the government, Jeez, far be it for me to argue with the government.

The Chair: I thought I'd entered The X-Files for a minute, but apparently not.

Shall Reform amendment 4 pass?

(Amendment agreed to)

The Chair: Congratulations, Mr. Ramsay.

Mr. Jack Ramsay: Thank you.

The Chair: I suspect that wall is moving, but we'll see.

Reform amendment 5.

Mr. Jack Ramsay: Out of respect to the parliamentary secretary, and with respect to what his officials have told us previously, I will withdraw this amendment.

The Chair: Okay. Reform amendment 6.

I can't wait to see what's going to happen with this one.

Mr. Jack Ramsay: I'd like to begin, if I may, Madam Chair, by striking “criminal harassment” from the amendment, for the same reasons. I think the parliamentary secretary and his officials made a good point on the earlier debates, and I think it applies in this area.

I would be willing to amend this to put it into the secondary designated list area, following line 29 on page 12.

• 1100

The Chair: I think what we have to do is have you present it as a separate motion; withdraw this one and present it as a new motion.

Mr. Jack Ramsay: Then I would withdraw it and present it as a new motion.

The Chair: Okay. Let's just be clear here. Reform motion 6 is withdrawn. We'll designate this new motion Reform motion 6A. It reads the same way save and except that proposed subparagraph (xiii) is deleted. Rather than inserting this in...

You're going to have to help me with—

Mr. Jack Ramsay: It would be inserted on page 12 at line 30, or following line 29. As you will notice, it follows the proposed paragraph referring to failure to stop at the scene of an accident.

The Chair: Okay. So Reform motion 6A is that Bill C-3, in clause 15, be amended by adding after line 29 on page 12 the following...and then it reads just as motion 6 does, adding proposed subparagraphs (ix), (x), (xi), and (xii). Then (xiii) is deleted and (xiv) becomes (xiii).

Response? Mr. Discepola.

Mr. Nick Discepola: Thank you, Chair.

We're prepared to accept the proposed subparagraphs on subsections 249(3) and (4) and subsections 255(2) and (3), but we're not prepared to accept the proposed paragraph on section 264.1, which is on grievous bodily harm. Since Mr. Ramsay has amended it after line 29 on page 12...

I'm presuming now you're putting it in the secondary offence?

Mr. Jack Ramsay: Yes.

Mr. Nick Discepola: We're prepared to support that also.

The Chair: You can live with it, then?

Mr. Nick Discepola: Except for proposed subparagraph (xiii).

The Chair: On section 264.1, grievous bodily harm. Do you want to comment on that for us?

Mr. Nick Discepola: No. All these offences are going to be in the secondary list, right?

The Chair: Yes.

Mr. Peter MacKay: Assault and torture: “grievous bodily harm” surely fits that bill.

The Chair: Mr. Peter Mackay, did you want to speak?

Mr. Peter MacKay: Grievous bodily harm certainly fits the bill here. I would think there's an argument to be made that it should go in the primary grounds, but with it in the secondary grounds at least there is discretion on the part of the police and the crown to make a decision. But if torture and simple assault, from section 266, are in, I see no reason why you would exclude the proposed subparagraph on section 264.1, grievous bodily harm. With grievous bodily harm there's certainly going to be evidence of blood—

The Chair: Excuse me, section 264 is on uttering a threat.

Mr. Peter MacKay: He has it down as grievous bodily harm.

The Chair: I know, but if you go to section 264.1 it's not causing grievous bodily harm, it's uttering a threat. So if that can be deleted...

I told myself this morning I wasn't going to engage in this process, I was just going to chair.

Mr. Jack Ramsay: You're doing all right.

The Chair: Thanks.

Mr. Jack Ramsay: I would be willing to withdraw that.

The Chair: Okay. Reform motion 6A then ends at proposed subparagraph (xii), on subsection 255(3), impaired driving causing bodily injury.

Then do you move that Reform motion 6A?

Mr. Jack Ramsay: Yes, I do.

The Chair: Mr. John McKay.

Mr. John McKay: Just as a point of clarification, I don't have a code in front of me, and I'm not checking the section versus the description of the section. Can we as a committee rely on all proposed amendments as being accurate descriptions? Is that fair?

• 1105

The Chair: Yes. I think we were trying to double check here to make sure these descriptions are accurate. That's why I looked up what's alleged to be grievous bodily harm here. In fact, it's the offence of uttering a threat to cause.

Mr. Andrew Telegdi: We have the assurance of the...

The Chair: Yes.

Mr. John McKay: But we have a raft of these.

The Chair: Oh, I see what you mean. No, we'll continue to try to check them all.

Mr. John McKay: I just don't want to have the committee in the embarrassing position of having thought they were dealing with grievous bodily harm—

The Chair: When they were deal with shoplifting.

Mr. John McKay: —when in fact they were dealing with something else.

(Amendment agreed to [See Minutes of Proceedings])

The Chair: Next is amendment R-7.

Mr. Ramsay.

Mr. Jack Ramsay: Of course, this is a request to put kidnapping and extortion into the primary list, based upon the same arguments. I think they're serious. I'd of course like to hear from the government about what they think about including sections 279 and 346 in the primary designated offence list.

Mr. Nick Discepola: Chair, I guess it's for the main reason that the likelihood of finding a lot of these substances, in the event of these two sections, 279 and 346, would be minimal. So you wouldn't have the DNA sample that you could actually test and take a profile of. So for those, Mr. Ramsay, that was one of the main reasons we're sort of saying it shouldn't be included as a primary offence. But I'll ask Michael to refer to it also.

Mr. Jack Ramsay: On a point of clarification, I didn't mean to lead you into a trap, but you see, section 279 is already in there. So I would have to amend my motion to delete proposed subparagraph 487.04(a)(xv), because section 279 is already there.

I'm sorry, we're just adding the word “and” there. So that would stand.

The Chair: Let's go back then. The motion stands as it is. The amendment with respect to kidnapping is to add the word “and”, so he could then include extortion. This motion only seeks to include the offence of extortion—

Mr. Jack Ramsay: Yes.

The Chair: —under section 346 of the Criminal Code in the list of primary designated offences.

Mr. Jack Ramsay: The other one is consequential.

The Chair: Mr. Discepola, did you...?

Mr. Nick Discepola: No, the rationale is still the same.

The Chair: Okay.

Mr. Nick Discepola: Unless, Michael, you have a...

Mr. Michael Pierce: I was just going to point out that essentially extortion is the same kind of offence as was just struck out of the last motion, which is the uttering threats motion. In this case, extortion simply involves uttering of threats for the purpose of getting money or property, rather than for a more general purpose. So, in essence, it's the same in kind as the last one that was just rejected.

Mr. Jack Ramsay: I accept that argument, Madam Chair. In order to be consistent with the withdrawal of my previous one, I would withdraw this one as well.

The Chair: Okay, thanks. Amendment R-7 is withdrawn.

(Clause 15 as amended agreed to)

(On clause 16)

The Chair: Next is amendment R-8.

Mr. Ramsay.

Mr. Jack Ramsay: The amendment adds simply the words “or obtained” to paragraph 487.05(1)(b):

that a bodily substance has been found or obtained

When Mr. John Walsh, the crown prosecutor from New Brunswick, appeared before the committee, he suggested this amendment and he gave an example to explain why.

• 1110

He referred to a case involving a victim who alleged sexual assault and who had become pregnant as a result of the attack. The suspect denied sexual contact. The police had grounds to obtain a warrant for the accused and wanted to corroborate the complaint by comparing the DNA profile from the fetus. The warrant was refused on the basis that the fetus did not fall within the description of a bodily substance within this particular section. So Mr. Walsh felt that adding the words “or obtained” would alleviate the problem they ran into in this particular case. That's basically the rationale for this amendment.

The Chair: Mr. Discepola.

Mr. Nick Discepola: I'll ask Michael to address that, Madam Chair.

The Chair: Your lawyer, Michael, or your other lawyer, Michael?

Mr. Nick Discepola: It's Michael and Michael et al.

Some hon. members: Oh, oh!

Mr. Michael Pierce: As I understand it, this goes with the next amendment, which would be to delete the criteria or locations. The adding of the word “obtained” by itself I don't believe causes any problems. It's only in relation to the next provision, which would delete the indicators of places where the DNA sample can come from, that it does cause some considerable concern. In the cases to date reviewing the warrant scheme, the fact that there was a limited range of places from where the DNA could be taken, so that this was a carefully tailored scheme, was found to be important to the defensibility of that scheme under the charter.

We are concerned, for instance, that in the situation referred to, there are broader implications to taking a DNA sample where the DNA hasn't come from one of these places. The primary purpose for the taking of the DNA sample may change. That's the heart of the concern. That is, rather than being the taking of a sample for the purpose of identification of the perpetrator, it may be in relation to identification of the perpetrator as related to, for example, a fetus or a child who was born. That would be a substantial change in the use of the DNA and a substantial departure from the scheme as proposed here.

So that's why the two prongs of concern are the effect on our charter position in defending the scheme and also opening it up to new uses.

Mr. Jack Ramsay: Okay. If I may ask, how do we assist Mr. Walsh in future cases he runs into? Or are we going to not address that or perhaps even abandon his concern? What would you recommend or suggest in this area, other than to consider the amendment based upon his recommendation?

Mr. Michael Pierce: There may be considerable merit to Mr. Walsh's concerns. Under the circumstances, though, they would require much broader amendment than is considered here, and that's something that should be subject to further study and should perhaps be a future amendment.

I understand that some consideration will be given to the possibility of changing the purposes for the taking of the sample down the road. It would be best to proceed at this time with the legislation as it is, and some consultation will have to take place in regard to Mr. Walsh's specific concerns.

Mr. Jack Ramsay: In other words, the department has recognized his concerns but does not feel this is an appropriate amendment to address those concerns.

Mr. Michael Pierce: That's correct.

Mr. Jack Ramsay: Okay. Then the department is not prepared to bring forward an amendment at this time to address Mr. Walsh's concern?

Mr. Michael Pierce: Some consultation will have to go on, perhaps even more broad-based consultation, before we would be in a position to bring forward an amendment, but that's a process that should take place.

Mr. Jack Ramsay: And you're satisfied that this amendment would not address his concerns?

• 1115

Okay, I'm prepared to hear from anyone else.

The Chair: Mr. Pierce, just to make sure, are you saying there will be a more broadly based consultation, that the department is taking this seriously, and that it should ultimately be addressed in some way?

Mr. Michael Pierce: I don't know that the consultation is under way. I know the issue is on the table for discussion and that there is a recognized concern.

The Chair: Okay.

Mr. McKay.

Mr. John McKay: It's for a point of clarification, Madam Chair. As I heard what you said, you weren't objecting to Reform amendment REF-8 adding the words “or obtained”, but you were objecting to it if the next amendment was to pass as well. Would there be any issue if, as a stand-alone amendment, the words “or obtained” were added to line 24 here?

Mr. Michael Pierce: No, I don't believe that would cause a problem by itself.

Mr. John McKay: So, Mr. Ramsay, do you want to reconsider what you just said?

Mr. Jack Ramsay: Yes, I would ask for the legal opinion from the department. In the opinion of the department, would simply making that amendment adding the words “or obtained” to paragraph (b) address Mr. Walsh's concern, or would there have to be further consideration to amend the act to address Mr. Walsh's concern?

Mr. Michael Zigayer: I don't think that would respond to Mr. Walsh's concern. You may recall that another pair of witnesses, Renée Pomerance and Dr. Young from Ontario, brought up the same issue. They knew about Jack Walsh's concern and his proposal, but they had an alternative to propose. Theirs was a more precise amendment, an addition of another paragraph to the list of places where you can find something. We believe those subparagraphs in (b) are necessary, which is why we had trouble with Jack's proposal to just put in the word “obtained” and then remove the other things.

So the quick answer to your question is that it wouldn't respond to Jack's concerns.

Mr. Jack Ramsay: This is not a criticism of the department, but I'm just wondering if now would not be the appropriate time to address Mr. Walsh's concern through an amendment to the bill.

Mr. Michael Pierce: If the concern was a straightforward one that could easily be dealt with via a single amendment that didn't raise new and much broader policy issues than those currently before us, I think that would be the case. But it really is both something that would require substantial changes within the bill and also something that would require a real policy shift. For that reason, because there was no broader consultation done on this, we want to make sure we get it right.

Mr. Jack Ramsay: Then if the department has no objection to adding the two words “or obtained”, Madam Chair, I would allow that amendment to stand and to be voted upon.

The Chair: And you would withdraw REF-9?

Mr. Jack Ramsay: I would withdraw the other as we get to it.

The Chair: Okay, I just want to be really clear. We are now voting then on Reform amendment REF-8—to which there is no great objection by the department—so long as Reform amendment REF-9 is withdrawn.

Mr. Jack Ramsay: Yes, I would withdraw that.

The Chair: Okay. If this was Provincial Court, Criminal Division, in Windsor, I would have you withdraw amendment REF-9 first, but we'll operate on good faith here since we have the votes anyway.

All those in favour of Reform motion REF-8?

(Amendment agreed to)

The Chair: And Reform motion REF-9, Mr. Ramsay?

Mr. Jack Ramsay: I withdraw that.

The Chair: Thank you.

Before we go to Conservative amendment PC-6, let me just get some guidance. It's Thursday, and I know Mr. MacKay has to go to Quebec.

An hon. member: You're not going to run?

The Chair: No, I'm not going to Quebec.

Let me say that we have a suggestion from our clerk that we continue to work. In order to facilitate that, we either order food from the cafeteria downstairs or we order pizza. If I can give Luc instructions to go ahead and do that, we'll just continue to work, and Luc, you'll include our guests as well.

• 1120

Now we're on PC-6, on clause 16, Mr. MacKay.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): At what time do you plan to adjourn?

The Chair: We have to adjourn for Question Period, don't we? We'll go until 2 p.m. and see where we're at.

Mr. MacKay, number 6.

Mr. Peter MacKay: Again, Madam Chair, there are approximately 18 consequential amendments that have to do with the timing of the taking of the DNA. We're saying it should be taken upon arrest. So perhaps we could deal with all of the amendments at once.

The Chair: That's helpful. Thank you, Peter. This means that clause 16 will stand and we're at the main event here, clause number 17.

(Clause 16 allowed to stand)

(On Clause 17—Order)

The Chair: Reform amendment number 10.

Mr. Jack Ramsay: This is the major amendment from our caucus. We would change the words in lines 27 to 28 on page 14 with the following:

487.051(1) If a person is charged, discharged under section

The purpose of this is to allow for the DNA sampling to be taken at the time not of arrest but of charge.

We have heard witnesses, particularly witnesses from the department, who have been opposed to this amendment. Yet of all the sections within this bill, I think this one poses the greatest tool to save lives, to solve unsolved crimes, to bring to justice and to take from society those people who have committed violent offences.

Inasmuch as I do not believe the introduction of this bill would deny the rights of anyone inasmuch as the DNA sampling has been approved in 104 and it's supported by the courts, I do not feel this amendment, the allowance by the peace officers to take a DNA sample after charge, is an abuse. In fact, if we follow the statutory authority that would occur at this time, first of all, the police have reasonable and probable grounds to arrest—that statutory authority—there is a charge laid based upon those reasonable and probable grounds, and following conviction, which is a judicial decision, the DNA sample would be authorized.

In trying to strike a balance between what the witnesses, certainly from the Canadian Police Association, the chiefs of police and others, have asked for, I think this is a fair balance and I think of all the things we could do as a committee to enhance the police officer's ability to save lives, to solve unsolved crimes and to bring to bay those who are a threat to the lives and safety of members of society, this section would do that. That's why I'm presenting it, Madam Chair.

The Chair: Thank you, Mr. Ramsay.

Mr. Forseth, you wanted to comment as well.

Mr. Paul Forseth: Yes. Mr. Ramsay has made the technical arguments, but it's my suggestion that there's also a political argument. When you talk to the average person out on the street about how far will this DNA collection go, and you'll soon be talking about charge or conviction... I just think there's tremendous political support from the average person out there. There's the expectation of us and Parliament to do the right thing and the common-sense thing. When you talk to anybody, they say it should be after charge, not after conviction.

• 1125

I challenge anyone to go out and start talking about the demarcation line at a town hall meeting and find out what the common sense is out there. I'm also making the political argument on behalf of my community and your communities that this is where I think the common-sense balance is in the community.

The Chair: Mr. MacKay, do you have comments on this motion?

Mr. Peter MacKay: I think Jack has pretty much set out what the argument is. The rationale here to use DNA as an investigative tool will be far better served if the DNA is taken upon charge. This is something I think we should be encouraging.

As for charter vulnerability, paranoia, or constipation—whatever you want to call it—I don't think we, as a committee, follow the comments Mr. Lee made. We have to turn our minds to it. It's not to say we should be turning out any kind of ridiculous legislation, but as I've said before, lawyers are going to challenge this. Mr. Koziebrocki made that point yesterday. That's what lawyers do. That's their stock-in-trade.

If our purpose is to improve the criminal justice system and the use of DNA is going to do that, giving police officers the ability to take a sample at the time of charge where there are judicial safeguards in place—the police are not arbitrarily charging people; that's not happening—I don't see why we wouldn't, as a committee, embrace that idea and get on with it.

This is where the law is going, and the point has been made that the law has trailed behind the technology. I think it's time for us to make provisions in this legislation that will allow police officers to get on with their very serious and necessary job of crime prevention and solving unsolved crimes. I think the timing here is important.

The Chair: Thanks, Mr. MacKay.

Mr. Marceau, do you have any comments on this motion?

Mr. John McKay.

Mr. John McKay: I would like to ask Jack, Paul, and Peter what in this legislation prohibits a police officer from obtaining DNA samples for the warrant.

Your argument is that this will be a helpful investigative tool. I understand that argument. But what is it that prohibits a police officer from, on evidence, obtaining a warrant to obtain a sample?

Mr. Peter MacKay: Nothing prohibits them from doing it, but it's the timing that's involved. You have to appreciate that in rural Canada it's not always easy to get a justice of the peace to get a warrant. It's the same type of argument we went through during the Feeney discussion about leaving the crime scene, going to get a judicial authorized warrant, and then going back. If the police had the ability...

Mr. John McKay: But don't you just put the cart backwards here? In effect, you force the police officer to arrest and charge in order to get the sample, instead of getting the sample and then arresting and charging.

Mr. Jack Ramsay: There's statutory protection against arresting without reasonable and probable grounds, particularly against laying a charge. There must be reasonable and probable grounds to lay a charge. So we have the statutory protection as well as the judicial protection, because an arrest is made on reasonable and probable grounds and a charge is also... The police officer may feel he has reasonable and probable grounds to make the arrest, but he has to produce reasonable and probable grounds before a court-competent jurisdiction.

Mr. John McKay: I understand that, but I don't see how putting this individual in the bank is of particular assistance to the investigation of that particular crime.

Mr. Paul Forseth: The additional hurdle, of course, is in British Columbia. We have the pre-screening of the crown. I really wonder if a defence counsel would make some arguments that technically the charge is not laid until five days later when the crown counsel finally approves it.

Mr. John McKay: You're talking about administrative issues. I don't—

• 1130

Mr. Paul Forseth: Yes, but that's the way it works.

I was out riding with the police in my community just the other night. The way the calls come in, if a choice is to be made, then with one more administrative procedure, they're just going to stroke it off and say they'll forget it and go to the next call.

Because the calls are coming in so quickly, the administrative burden, the paper burden is high. If there's any procedure that requires having to get a JP or whatever, they're just going to say forget it.

The Chair: Mr. Forseth, I don't buy that. That hasn't been my experience.

Mr. Paul Forseth: Well, that's the way it's happening.

The Chair: Mr. Coderre.

[Translation]

Mr. Denis Coderre (Bourassa, Lib.): Madam Chair, I have the impression I'm watching part of the movie Judge Dredd, in which police are both judge and interested party. I worry about the fact that this could give rise to two kinds of justice, one in the country and one in the city. I would like to hear an opinion on this because I have a problem with giving police officers de facto use of tools of that order. In my opinion, this introduces a rather nasty role on the question of presumed innocence. Am I wrong, Mr. Discepola? It's a little dangerous to give people tools like that.

Mr. Nick Discepola: It is because tools already exist. In our opinion, there is already a balance. What I mean by that is that Bill C-104 already gives the necessary tools in cases, I hesitate to say extreme, but serious. The police already have in their possession sufficient means to procure additional protection for an individual following a decision by a judge or a court.

But to give a general answer to the questions of the members of this Committee, I would say that Clause 17 is a clause that is creating numerous problems. You can see how many amendments have been proposed to this clause—there are 24.

We have heard evidence that, if samples are taken at the time of arrest or conviction, this contravenes Sections 7 and 8 of the Charter.

There is also a Supreme Court of Canada decision that says, in the case of Bill C-104, I don't know the term in French, that

[English]

if you have a warrantless search and seizure, that's going to contravene the charter.

Although I agree with Mr. Forseth's assessment of the general public, we have testimony in this committee that's shared. Our opinion is shared, I have to remind you, by all the attorneys general, the Canadian Bar Association, as well as the privacy commissioner. The privacy commissioner raised some serious concerns about taking a sample at the time of the charge or arrest.

We believe the tool the police and other jurisdictions are after can be addressed adequately—in my opinion, more than adequately—by using the warrant legislation, which has already withstood charter challenges successfully. So to me, it arrives at a proper balance.

There were some extremes suggested, such that maybe we could start taking samples at birth. It's probably much easier. But I think we want to strike a balance, and the warrant legislation provides that balance.

The Chair: Mr. Coderre, just a second now. I just want to thank you and Mr. Discepola for your interventions, but we have some others, and we'll get back to you.

Mr. Lee.

Mr. Derek Lee: In relation to references in some parts of the country, the process of obtaining authorization for a sample would be slower. As I understand our proposed legislation, even with a primary designated offence, the police will still have to obtain a court authorization. It's just that the process is fairly automatic. But there will be a process whereby the police must obtain the authorization from the court.

So if that automatic process is in place comprehensively across the country, it's also reasonable to assume that the optional warrant process for obtaining DNA would be exercisable or doable in all parts of the country, because the court process for dealing with the primary designated procedure is in place. The difference, of course, is that under a general warrant to obtain the DNA sample, the police or the crown would have to show a justification, a reason to connect the alleged offender or the person who has been arrested or is being investigated with being related to either the current offence or some other offence.

• 1135

Therefore, I'm not so concerned about that alleged operational deficit that is alleged to have been out there. I don't think it is there. If it is there, we'll have to correct it by other means. Part of this net, where there is a gap now, is the matter that was brought to our attention by a number of witnesses. That is, there is a risk of flight if the person arrested believes he or she will be connected through a DNA profile to a previous offence likely present in the data bank, the crime scene index.

We're going to lose that person if we don't take a DNA sample at the time of charge. I can't think of a solution. But keep in mind that the police authorities at the time they're charging will be ignorant of the person's connection with any other crime. They will not be aware of it, so they won't even think about trying to develop it as justification for asking for a general warrant.

We lose some efficiency in some random, relatively rare cases in identifying a suspect for a previously committed crime in the crime scene index. But against that inefficiency, we have two difficulties. One is the charter issues that have been raised, and second, the cost factor where we would in almost every case be obtaining a DNA sample and profile of the person charged just because we decided to do it. So there are cost plus charter-negative reasons, and then there's the risk of flight, which is a positive reason for doing it.

I personally would like to look at it more closely after the process of obtaining DNA samples is less intrusive than it is now—the thumb swipe, for instance.

The Chair: Thank you, Mr. Lee.

Mr. DeVillers, then Mr. Peter MacKay.

Mr. Paul DeVillers: Thank you, Madam Chair.

Obviously, this is the most relevant question on this legislation. This is not to belittle the subject, but we did have a session in camera where we had a lengthy debate in which I think most of the positions were put forward.

We've had many witnesses provide testimony on the issue. I think the committee is fairly well versed with the pros and cons, although there may still be quite a lot of concern or indecisiveness in the minds of some of the committee members. We did have the session where departmental constitutional opinions were, I submit, almost cross-examined by committee members.

I think we're at the point, Madam Chair, where we've pretty well flushed the issue out, and I think it's time to make a decision.

The Chair: Mr. Peter MacKay.

Mr. Peter MacKay: I'll be very brief, Madam Chair. I simply want to make sure it is on the record that there are contrary opinions as to the constitutionality argument, that this would not survive a constitutional challenge. But I think Mr. Lee, as usual, has hit on the crux of the matter here. Are we talking about crime prevention versus the intrusiveness aspect?

Quite frankly, we saw the intrusiveness demonstrated in this room. Mr. Newark submitted himself to what I would say sarcastically is a highly intrusive taking of a sample. I mean a swab, the removal of a hair, a pinprick. If that is going to solve a murder or a sexual assault, weighing that on the balance, and weighing that as to what our true intent is in passing this legislation, I think on balance we have to do it.

• 1140

Mr. Lee gave an example about a person fleeing. Criminals are smart. They know if they're arrested...and we're talking about the high-end level of criminality. We're talking about murders, rapes, robberies. If they feel they are going to be submitted to a DNA test that is going to link them to a more serious crime, they're not showing up for trial. They're just not going to do it.

The figures are staggering. There are 600 unsolved murders in B.C. alone. That is food for thought as to what we're trying to do here.

Those are my comments, Madam Chair.

The Chair: Thank you.

Mr. Ramsay.

Mr. Jack Ramsay: To wrap this up, it is not so much solving unsolved crimes I look at—although that's extremely important—but the potential that the DNA-taking at the time of charge would have in saving lives, getting off of the street people who are in this whole area of sexual assaults and killing people.

This is what members have to think about. When we vote on this now, today, we have to consider that. Are we going to weigh a possible successful constitutional challenge against not a possibility but the assurance from the Canadian Police Association and others in law enforcement that this will in fact provide a tool to save lives?

That's what I think is the crux of whether or not we vote for or against this motion—to give the police the tools to do exactly the same as they do at the time they arrest an individual and take his fingerprints and run it through to see whether a fingerprint has been found at the scene of an unsolved murder, rape, or whatever, and then tie that person in with it to keep that person off the street and prevent them from creating a threat to the lives and safety of members of society.

That's what we must do. We've already done that with fingerprinting. With regard to the taking of DNA samples, we've looked at the intrusiveness, we've looked at the privacy part of it, and when we examine it, it seems to fall apart. There is no real basis for disagreement or objection based upon either privacy or intrusiveness.

So this is really what we have to look at—that is, whether or not we're prepared to give the police the tools that will, that have the potential to, save lives.

If we vote against this, you know what we're voting against: the fact that the police will not have the opportunity or the right, based in legislation, to take a sample from the likes of Clifford Olson or Bernardo. That's very important.

The Chair: I don't know that this is what we're voting on. I think that's another issue.

Mr. Coderre.

[Translation]

Mr. Denis Coderre: That's what I was going to say, Madam Chair. We are all moved and we are all against these murderers and foul crimes. But I live, and I want my children to live, in a society where there is a sense of balance and especially one in which a certain presumption of innocence can be maintained.

We have a mandate to us the law to achieve this sense of balance. I do not want a society in which all powers are given to a single institution. If we eventually give all the tools to the police, particularly in the way you suggest, I have to say that I do not fully agree. We cannot give too much de facto power to the police and maintain the presumption of innocence. I agree with what Mr. Discepola said. I will therefore vote against the amendment but, like you, I am against foul murder and the Bernardos of this world.

[English]

The Chair: Thank you, Mr. Coderre.

Are there any other comments?

Mr. Jack Ramsay: If I could, Madam Chair.

The Chair: Sure you can, Mr. Ramsay. It's your motion.

Mr. Jack Ramsay: One final comment. On the question of presumption of innocence, I'm sure the principle applies with fingerprinting at the time of arrest as it would for the taking of DNA samples.

I respect the view of my colleague on this, but we have ploughed this field already, through fingerprinting. If it's not a violation of the presumption of innocence by taking fingerprints at the time of arrest—because it refers to identification only—I'm at a loss to see how the taking of a bodily substance for that express purpose would violate the presumption of innocence further than what fingerprinting does. That's my final comment about that, Madam Chair.

• 1145

The Chair: Is that it, then? Let me just say this, for whatever it's worth. It strikes me that we've really pushed the envelope on this in terms of discussion in the committee. I think the discussion has been very good and helpful, but if—and I don't know, this may be a really trite sort of observation—we push the envelope all the way and we amend it, I think we're in a position where we know that the jurisprudence is such today, given the technology that's available and given everything about DNA testing that we know today... The attorneys general of Canada, virtually all of them, including the federal and provincial ones, and all their departments, are of the view that there's a serious risk here of a successful charter challenge—not just of a challenge, because it's all going to be challenged, but of a successful challenge.

If that happens, we could be in a position where it will be years before it can be rechallenged and straightened out as technology advances, whereas, because there is a safety valve in this bill that requires that it be looked at again in a period of time and reviewed again with a view to amending it and updating it to keep it in line with technology, it may be that by the time we get all the samples that are going to be caught and by the time we get caught up on this, we'll be back reviewing it, the technology will have changed, and we'll get DNA from a fingerprint or from a breath in the room.

I'm just saying that we should keep in mind that today isn't necessarily the end of it, that this bill has a statutory requirement for review.

Mr. MacKay.

Mr. Peter MacKay: Madam Chair, I follow that argument and I respect what you're saying about other jurisdictions and provincial attorneys general, but it still comes back to the fact that we're accountable here. The judges that might strike this down are not. We have to be bold at times and make laws. If the judges, in their wisdom, decide that those laws need to be changed or struck down, then we come back and do it again and try to get it right.

The Chair: Mr. Discepola.

Mr. Nick Discepola: Yes, if I could just conclude, Madam Chair, I find it unfortunate when we use extreme examples to put forth our arguments.

The Chair: We all do it. It's the nature of the beast.

Mr. Nick Discepola: Yes, it's part of politics, but I'd like to reassure Mr. Ramsay that, in my opinion, if we're going to take samples at the time of charge, it's really to solve outstanding crimes. If that wasn't part of your concern, then...

The other concern you had was the likes of Bernardo and Olson. Bernardo's case will be handled because the dangerous offenders category that he's charged in will capture him. We're also proposing an expanded retroactive scheme to get multiple serial killers such as the likes of Clifford Olson. If that has any bearing on this, that'll be proposed later on.

The Chair: All right. I think we're ready to call the question on this.

(Amendment negatived: nays 9; yeas 4)

• 1150

The Chair: All right. Next is Reform motion number 11. Mr. Ramsay, do you want to speak to that for us?

Mr. Jack Ramsay: I need a breather. After that one, I need it.

The Chair: Do you? If you do, say so.

Mr. Jack Ramsay: Yes.

The Chair: Does it have to go in this order or do you want me to skip to someone else and come back to you?

Mr. Jack Ramsay: Well, if you would.

The Chair: Okay. Can we go to Conservative motion number 7? Mr. MacKay, let me ask you this. Do you have motions that are consequential? Is there anything consequential you want to clean up on that, or do you want to do that at the end?

Mr. Peter MacKay: We might as well do it at the end. But, Madam Chair, based on the previous vote, my proposed amendments to clause 17 and the ensuing consequential amendments are all going to fall.

The Chair: Are they?

Mr. Peter MacKay: Yes.

The Chair: Do you want to take a moment to sort those out?

Mr. Peter MacKay: Yes.

The Chair: Okay. Let's see who else we have here.

Mr. Jack Ramsay: If I could just—

The Chair: Sure.

Mr. Jack Ramsay: The two motions that are relevant here are consequential to a future motion.

The Chair: Oh, are they?

Mr. Jack Ramsay: Yes.

The Chair: Okay.

Mr. Jack Ramsay: It has to do with proposed section 487.051.

The Chair: Okay, let's go slowly then. Can you do motion number 12 then? I gave you the breather; I gave you a second.

Mr. Jack Ramsay: Yes, they're both consequential.

The Chair: Motions 12 and 13?

Mr. Jack Ramsay: Yes.

The Chair: All right.

Mr. Jack Ramsay: If my further motion is not passed, then I'll withdraw these.

The Chair: Okay.

I'm just preparing to give Mr. MacKay time to pull his together and see which ones. The Bloc has some motions. Richard, you have some motions. Do you want to address those now or do we need them to go in a particular order? You have BQ-7 and BQ-8.

Mr. Richard Marceau: In that booklet, they're on what pages?

A voice: Pages 62 and 63.

[Translation]

Mr. Richard Marceau: Yes, I can do it, Madam Chair.

[English]

The Chair: In fairness, Peter has quite a few to sort out there and Jack needs a little break.

[Translation]

Mr. Richard Marceau: It is with pleasure that I move these two amendments. We will begin with BQ-7. I will wait a moment to give everyone time to find the page. Page 62.

[English]

The Chair: Mr. Marceau, can I just point out that there is a spelling error, a typographical error? The word “procedures” is spelled wrong, just so you know, on page 62.

Mr. Richard Marceau: Okay, well...

The Chair: We can correct that.

Mr. Richard Marceau: It was late when I typed it out.

The Chair: Ah, a member of Parliament who does his own typing.

Mr. Richard Marceau: That exists.

The Chair: A man of the nineties.

[Translation]

Mr. Richard Marceau: It's on page 62 in the booklet. It concerns samples. Our aim is always to avoid being invasive and the amendment aims to ensure that the persons who take the sample are health professionals because it has to be done properly.

I know that the existing wording already offers the provinces the discretionary power to have the sample taken by a health professional. Quebec is still saying it must be a health professional. Health professionals are always available everywhere. They're in prisons, police stations, it could be a nurse. So, I think that we should make sure that this is required everywhere so that procedures are as uninvasive as possible.

I think this is reasonable. I do not believe it is too much to ask, especially if it is done after the person is found guilty. It's not at the time of arrest, and there will always be the possibility of having a health professional available to carry out this medical procedure.

• 1155

[English]

The Chair: Thank you.

Mr. Maloney.

Mr. John Maloney: The nature of the samples that are taken, in my opinion, are not overly intrusive. We certainly wouldn't require a health professional to be in attendance.

I'm looking at the cost factor. The blood sample is a little prick that most diabetics take each day. They're not taking a blood sample like you would have when going for a blood test. The sample of blood is just a little prick on your finger.

Then we go down from there. One could take a buccal sample, which is the tissue on the inside of your cheek, and then a hair sample. I don't think we need this amendment.

The Chair: Mr. Marceau.

[Translation]

Mr. Richard Marceau: On that subject, I would like to say to Mr. McKay that, even if I understand what he is saying, when you go to give blood at the Red Cross, it's a nurse who sticks the needle in your finger. There's a reason for that.

[English]

Mr. John McKay: I also don't think this amendment needs to be supported. The reasoning has to do more with Mr. MacKay's and Mr. Forseth's arguments that in certain police situations, the staffing is pretty remote. To wait around for a professional to obtain a sample is not a supportable issue.

The other issue is that the way the taking of samples is going in terms of the technology means that even pinpricks won't be necessary. If I look two or three years in advance, you're going to have a piece of legislation that's already antiquated and unnecessary.

The Chair: We saw Constable Donnelly of Windsor take the sample here, and there was nothing to it.

Mr. John McKay: I see.

The Chair: I'm ready to call the question.

[Translation]

Mr. Nick Discepola: We have to think of another aspect, Madam Chair. We wanted to leave some flexibility in the Bill to allow the provinces a choice. Quebec has decided to act in the way it chooses. We have heard the opinion of other provinces who want to be allowed the same flexibility.

To respect law enforcement in the various provinces, I think some freedom of action has to be left to the various police forces, who are in a position to do it themselves. Administratively, each province should also be left some room to manoeuver.

There are also related costs. I think that the amendment, in its present form, would raise costs or be an additional burden on the provinces that don't want it. The flexibility is there for those who want it, and for a province like ours.

[English]

The Chair: Thanks, Mr. Discepola.

We'll call the question on the Bloc's motion 7.

(Amendment negatived [See Minutes of Proceedings])

[Translation]

The Chair: Yes, Mr. Marceau.

Mr. Richard Marceau: Madam Chair, as a result of last week's exercise which I considered very useful, I received the government's response to the proposal. The government told me that it will file a motion. I'm very curious to see it.

I'm on page 63, BQ-8. I will read you the end of the reply I received.

The government will file a motion aimed at allowing a person to express a preference regarding the bodily substances that can be sampled and asking the officer to consider the preferences expressed by that person.

• 1200

[English]

The Chair: Mr. Maloney.

Mr. John Maloney: The motion basically gives the accused the right to choose which kind of sample he should give. What happens in a situation where he refuses to respond to the choice?

[Translation]

Mr. Richard Marceau: That's right. And I am prepared to amend it. That is when the officer has to choose. All we want is to give first choice to the person found guilty. If that person refuses to cooperate, well, it will be up to the officer to decide.

But I am waiting for the government to...

[English]

The Chair: That's the intent; just to clarify the intent of your motion.

Mr. Discepola, are you ready?

[Translation]

Mr. Nick Discepola: Yes, Madam Chair. We have an amendment to Clause 19, which includes “the possibility for the person to state their preference as to the bodily substance to be taken from the person;” and specifies that the person responsible “shall take the person's preference into account as to the bodily substance to be taken before taking a bodily substance from the person.”

So, we are proposing the same amendment you are, but to Clause 19 rather than the clause under study.

Mr. Richard Marceau: I agree. Therefore, Madam Chair, considering the government's decision to propose an amendment similar to this one, I withdraw my amendment and will wait for the government amendment.

The Chair: Fine.

Mr. Richard Marceau: That's it, but if...

Mr. Nick Discepola: We should work together and cooperate.

Mr. Richard Marceau: Yes.

Mr. Nick Discepola: I believe that we will continue, sir.

Mr. Richard Marceau: Alright. I hope the amendment is adopted.

[English]

The Chair: Mr. MacKay, are you ready to go?

Mr. Peter MacKay: Yes. Madam Chair, again in the interests of moving this along, and based on the vote taken on Mr. Ramsay's motion—mine is similar—I would withdraw all the PC motions that are denoted by the number 9. Most of them have “C9”, so I can list them. They would be 1, 2, 4, 6, 7, 11, 13, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28. I withdraw those.

The Chair: Thank you, Peter.

Mr. Ramsay.

Mr. Jack Ramsay: We've gone by—

The Chair: We stood 11 and 12 down.

Mr. Jack Ramsay: Yes, but I had amendments to clause 17.

The Chair: That's where we are. Reform motion 10 was defeated, so we're at Reform motion 11.

Mr. Jack Ramsay: Yes. That amendment deletes lines 1 to 20 on page 15. That has to do with the power of courts to exempt—

The Chair: Can I just interrupt you for a minute.

Colleagues, we're on page 36 of the booklet.

Sorry, Jack.

Mr. Jack Ramsay: It's not 36. It's page—

• 1205

A voice: Page 40.

The Chair: We stood it down initially, so we'll just see.

Mr. Jack Ramsay: It's on page 40, Madam Chair.

The Chair: Okay. Reform motion number 13 on page 40 in your pile of motions.

Mr. Jack Ramsay: It has to do with page 15 of the act. It would delete lines 1 to 20, which deal with the powers of the court to exempt an individual convicted of an offence from granting a DNA sample.

Madam Chair, I listened very carefully to the testimony submitted by the officials who are present today with regard to that. However, my concern is that if we allow the courts this exemption, it may turn into a flood. We do not know the manner in which the courts will interpret this particular section. If we grant that exemption, then of course it may defeat the preceding authority to take DNA samples after conviction.

I have used other examples here and it's on the record. We saw a Parliament, with good intentions, pass other legislation and saw the courts using it in a manner that Parliament did not intend, so I'm very concerned about this; that is, I'm concerned that the courts will have the right and the power to exempt people who have been convicted and are compelled under a previous section to provide a DNA sample. This motion would strike that exemption.

The Chair: Mr. Discepola.

Mr. Nick Discepola: I have two points here, Madam Chair. First, we believe that unless you allow for residual discretion in the legislation, which this does, the constitutionality of the legislation would be put in jeopardy. Secondly, in establishing that discretion, we have used the high standard, which is essentially to prove “grossly disproportionate”. In setting that high standard, which I'm led to believe has only been achieved once in our history...we have set it quite high, and this test will limit the use of that discretion, we believe.

So it's a balance once again. If you don't have it, you risk successful charter challenges, and by having it, we've set the standard as high as possible. Maybe one of the Michaels might have something more legal to add to that.

Mr. Michael Zigayer: Probably both of us will. I think my only comment is this. Whether the legislation provides for some residual discretion or not, the court will take it. I think we referred to the case of Baron from the Supreme Court of Canada in saying that the court will likely exercise discretion in appropriate cases. The provision is crafted to try to narrow the scope of that discretion, in much the same way as maybe ten years ago there wasn't any discretion with regard to a firearms prohibition order under section 100, and then there came a decision called Chief out of the B.C. Court of Appeal.

As a result of that, we modified the Criminal Code provisions that dealt with firearms prohibition orders in order to provide a narrow discretion to a judge faced with that type of situation and to give him certain criteria to measure the case against. I think that's what we've tried to do here, and we've set a very high standard. It won't be a very frequent occasion, in our estimation, that a person convicted of a primary designated offence will be able to avoid the otherwise mandatory nature of this provision.

• 1210

Mr. Michael Pierce: Let me just add to that. In essence, we've tried to make a pre-emptive strike. We've tried to get ahead of the court on this one and create the discretion in a way that sets the standard at such a high level that we think it could only be met in the extreme exceptional case, rather than leaving it to the court to set the level of that discretion, which it constitutionally would.

In addition, in terms of the risk that the court will take this provision and expand it tremendously so in all kinds of cases samples won't be taken, the indication in the jurisprudence right now is that the courts are interpreting the standard of gross disproportionality to be a very high standard, and only in the rarest of circumstances is it met. I think I mentioned the other day I can recall only one Supreme Court of Canada case in which gross disproportionality was satisfied. So it will be the rarest of cases where this standard will be satisfied.

Mr. Jack Ramsay: I appreciate that and I hope you're right. But when the Supreme Court of Canada passed its decision on the extreme drunkenness case and indicated at that time it would be seldom if ever used, we saw what happened there. So I hope you're right.

I get the feeling from the committee that this amendment will not pass. I hope the testimony you've submitted to this committee is accurate.

The Chair: Thanks, Mr. Ramsay.

Are there any other comments? Mr. DeVillers.

Mr. Paul DeVillers: I know the Parliament of Canada is very wise because of the high calibre of the people who come here. However, there will be circumstances where Parliament, in passing these laws, as a general rule may not take into account... Having legislation with some judicial discretion allows for those exceptional cases that perhaps we legislators do not foresee.

I liken this to the work this committee did in the last Parliament on the Young Offenders Act, where there were provisions put in for judicial discretion—or the recommendation is for them and the minister is reviewing them now—to deal with those exceptional cases. I'm thinking of lowering the age in certain instances and releasing names in certain instances.

I think it's always wise to have some measure of judicial discretion to deal with the exceptional cases that Parliament, in its wisdom, doesn't foresee.

The Chair: Thank you.

(Amendment negatived)

The Chair: Reform motion 14 is on page 43 in our booklets. Do you want to go back to motions 11 and 12, which we haven't done yet?

Mr. Jack Ramsay: In order for me to withdraw those consequential ones, I have to deal with the motion on page 16, and we haven't arrived there yet.

The Chair: Okay, then do 14.

Mr. Jack Ramsay: This is consequential to that amendment as well because it would simply remove the reference to proposed section 487.053 if the other one passes and that proposed section is deleted.

• 1215

The Chair: Amendment REF-14 stands down, then. Actually, I think the correct expression is that amendment REF-14 stands. I'm talking like a provincial court judge. What a frightening thought.

An hon. member: Isn't 15 the same kind?

The Chair: Yes, he just needs time to get his mind around it, because there's so much stuff here.

Mr. Jack Ramsay: This amendment is to page 15, of course, at line 22. The amendment would allow the court to issue a warrant for the taking of a sample from persons charged before the coming into force of this bill. Inasmuch as we have already dealt with the taking of samples at charge and that has failed, I would withdraw this.

The Chair: Reform amendment REF-16 is a motion to delete lines 1 to 23 on page 16 of the bill.

Mr. Jack Ramsay: That's right, and for the very same argument. In this case, however, both the crown and the offender, under the following proposed section 487.054, have the right to appeal. The intent of this proposed section that I would like to see deleted would not be impaired entirely because of the right to appeal under proposed section 487.054.

The Chair: So it's the same argument with respect to judicial discretion.

Mr. Jack Ramsay: Yes, it's the same argument. That's right.

The Chair: But the difference in this case is that you say a person is protected because there's a right of appeal by the crown and the accused.

Mr. Jack Ramsay: By both the crown and the accused.

The Chair: Okay...or the convicted, rather.

Does anyone want to respond to this? Mr. Discepola.

Mr. Nick Discepola: The reason we're leaving the discretion in there, Madam Chair, is that there may be some occasions when there is already a profile available, especially in the convicted offenders index, for example. We want to leave that discretion so that you don't have to go to the trouble of obtaining another sample and testing it again. That's why we have that clause in there. Those are the main criteria.

Mr. Jack Ramsay: Well, I'd be willing to withdraw this if you'll support my next motion.

Mr. Nick Discepola: Which one of the next ones are you going to propose?

Mr. Jack Ramsay: It's right down at the bottom of page 15.

The Chair: Jack's trying to getting back on that roll, I think.

Mr. Jack Ramsay: I think it's going to be difficult.

The Chair: The little people will pick you up, Jack. You'll be okay.

Mr. Jack Ramsay: We're getting hungry, I think.

Let's take the vote on that, Madam Chair, unless there's further discussion.

(Motion negatived)

The Chair: Okay, we'll turn to Reform motion REF-17.

Mr. Jack Ramsay: What page is that on, Madam Chair?

The Chair: That's on page 53 of the booklet.

Mr. Jack Ramsay: Got you.

This amendment would allow for the taking of samples beyond that very strict focus of the present clause. In other words, the clause restricts the taking of samples from dangerous offenders or multiple sexual offenders. We would broaden that to include one or more of the primary designated offences. If an individual has been convicted of one or more of the designated primary offences, the authorities would have the power to obtain a DNA sample from someone who is convicted and is in custody for at least two years.

The Chair: Thank you, Mr. Ramsay.

Are there any other comments on that? Mr. Discepola, do you want to respond?

• 1220

Mr. Nick Discepola: We are proposing some amendments to the retroactive scheme, as I mentioned before. We believe if you overly broaden the retroactive scheme, then under section 8 of the charter there'd be serious challenges there.

You have to take into account that the retroactive scheme has two underlying aspects, in fact: the protection of the public and the risk of the chance of recidivism. We feel by restricting the retroactive scheme to some of the categories we said and expanding it to the other categories mentioned, we're on safe grounds. If we overly broaden the retroactive scheme, then we feel we'd be on less safe grounds, if I can put it that way.

That's why we're not supporting a full-blown retroactive scheme.

Mr. Jack Ramsay: Just to respond to that, in this area what we're looking at is giving the police the potential for solving unsolved crimes committed by people who are in custody for an offence on a sentence of two years. The taking of samples at the time of charge was not only to do that but also to create the potential to apprehend people who are dangerous to the public.

This is designed specifically to clear up the unsolved cases that may have been perpetrated by people in custody at the time under these conditions. What we're doing is simply broadening what the government has done, what the Justice department has suggested. We've gone through that door and are simply broadening it, because we do not see any reason not to broaden it or any justifiable reason to maintain the narrow focus of the present section.

Mr. Nick Discepola: We've tried to include some of them. I think we're waiting for an amendment from either Mr. Lee or someone else to broaden it a little bit more.

You're not accepting our argument, obviously.

Mr. Jack Ramsay: Well, it's sounding better, Nick. It's sounding better.

Mr. Nick Discepola: Maybe Michael Pierce has something to add.

Mr. Michael Pierce: The taking of samples from those who are currently incarcerated poses a number of charter risks under a number of different sections: section 7, life, liberty and security of the person; section 8, search and seizure; and section 12, cruel and unusual treatment.

The taking of samples in this kind of situation would truly be unique. The way we've set up the data bank scheme right now is that we see three different circumstances in which samples can be taken, and different justifications for each of those circumstances. You have the taking of sample at any time during the investigative process, pursuant to the warrant scheme. You have the taking of the sample upon conviction and flowing from the conviction. Then you would have this retroactive scheme.

Taking samples retroactively can't be justified on the basis that the person has been convicted for an offence, because they've been finally punished for that offence. It would cause a form of “double punishment”, I'll call it. It's slightly more nuanced than that when you look at the actual jurisprudence, but for our purposes, I think that gets the idea out there.

Since it can't flow from conviction, you have to have another justification, and that other justification can't be simply for the investigation in solving of past crimes, because that runs squarely into section 8 of the charter and requires prior judicial authorization.

So you need an extra-strong societal interest to justify the taking of samples retroactively. That extra-strong justification we have recognized is a justification that takes into consideration the risk to the public and the risk of recidivism. We've tailored the categories where we'll take samples retroactively to those where there is the greatest risk to the public in risk of recidivism that can be identified.

As I understand it, there is a motion that will be moved to expand that category to include multiple murderers, because again, consistent with the dangerous offenders and the multiple sexual offenders, we can identify a pattern of recidivism that poses a greater risk to public safety. Doing that, we feel we go as far as we can go without having it struck down under the charter.

• 1225

Mr. Jack Ramsay: May I ask you, quickly, this question? Do dangerous offenders, most of whom will not see the light of day, fall within that category of being an extra-strong societal risk?

Mr. Michael Pierce: Dangerous offenders can be released, and some of them are, and when they are released, they are an ongoing risk to society by definition still of the tag “dangerous offender”. That label stays with them even upon release. So they always pose an ongoing risk to society, a determination that's made when they receive the dangerous offender designation. By definition, they're a risk to society.

Mr. Jack Ramsay: So that small number of dangerous offenders being released, do you think the courts would use that or look upon that as a justification in this particular area?

Mr. Michael Pierce: That's correct.

Mr. Jack Ramsay: Thank you, Madam Chair.

The Chair: Thank you.

Mr. McKay. Sorry, I almost forgot about you.

Mr. John McKay: Madam Chairman, before we deal with Mr. Ramsay's motion here, I understood the government witnesses to say amendments will be introduced on this point.

The Chair: The government has some amendments that would be related to this.

Mr. John McKay: It seems to me it would be helpful for the committee to be looking at both at the same time.

A voice: Agreed.

The Chair: There's nothing to stop you. Which ones are they?

Mr. Jack Ramsay: Madam Chair, my other amendments can be withdrawn because of their consequential nature.

The Chair: Oh, okay. While Mr. Discepola's looking that up, can we get some numbers?

Mr. Jack Ramsay: Yes.

The Chair: Are they amendments 11 and 12?

Mr. Jack Ramsay: Yes.

The Chair: Okay, so Reform motion 11 and Reform motion 12 have been withdrawn by Mr. Ramsay.

What about number 14?

Mr. Jack Ramsay: Yes.

The Chair: So Reform amendments 11, 12, and 14 have now been withdrawn.

Mr. Jack Ramsay: They are consequential.

The Chair: Thanks, Mr. Ramsay. That's helpful.

Mr. Nick Discepola: Madam Chair, the first amendment is on page 51, number G-5, and we're seeing if there are other consequential amendments after.

The Chair: Okay, let's just take a look. We're not formally debating it, because we have Mr. Ramsay's motion still on the floor, but Mr. Discepola is drawing our attention to G-5 at page 51, which allows an ex parte ruling order by a provincial judge to catch convicted persons retroactively if they've committed more than one murder at different times or more than one sexual offence. So that goes some distance, but...

Mr. Paul Forseth: I like the term “serving sentences”, which includes persons out on parole.

The Chair: Yes.

Mr. Jack Ramsay: I don't see any difference to the amendment. It says, “before the coming into force of this subsection, had been convicted of more than one murder” or “more than one sexual offence”. So it still requires multiple sex offences.

The Chair: Yes.

Mr. Jack Ramsay: Okay.

The Chair: And that's linked to the issue of the likelihood of recidivism.

Mr. Jack Ramsay: Yes.

The Chair: Which the government thinks is judicially necessary.

Mr. McKay.

Mr. John McKay: I just have a point of clarification so I understand what we're looking at here. You're leaving the dangerous offender category in, obviously. You're clarifying, with respect to sexual offences—“one more than”—and you are proposing adding murder.

• 1230

I suppose the question I have for you then is this. What is the argument that the entire designated list would not go into this? If you successfully go ahead with conviction for the designated list and bank, why is it that you would not put in the designated list and bank for those who are serving a sentence? Can you flesh that out for me?

The only material difference I see is the retroactivity aspect of this particular legislation. So can you tell me why you would not just dump that primary designated list right into this section?

Mr. Michael Pierce: You certainly hit on the main point. It is the retroactivity that is the key problem. It's a principle of fundamental justice that once someone has had their sentence finally determined and they're being finally punished, it will not be changed. So if we are going to violate that principle of fundamental justice, in principle, we had better have the strongest societal interest possible, and that means the most serious offences with the greatest risk to the public and the highest recidivism rate.

If you simply took them all and put the whole designated list in there to the retroactive scheme, in my view, the retroactive scheme would almost certainly be struck down as unconstitutional.

Mr. John McKay: I'm just trying to see what's in and what's out here. If a person were only convicted once of sexual interference, they would not be banked—

Mr. Michael Pierce: That's correct.

Mr. John McKay: —in spite of the fact that the one conviction might in fact have been a plea bargain, or the one conviction might well have been a pattern of offences where that individual was suspected but not charged on those things.

Mr. Michael Pierce: In raising those points, you actually identify the problem on the other side, which is, we simply don't know the circumstances in which the conviction has taken place. We don't know the full picture, and there is a real risk of going—

The Chair: Can I ask a question that follows on that? I appreciate that your motion is actually on the floor, but looking at amendment G-5 for a minute, could we broaden it by adding to it anyone who has been convicted of a primary designated offence, who has been released on parole, or released at the statutory period after two-thirds, but gets detained again because of a breach? Because those people, once they're back in detention, have been determined by a parliamentary scheme through the parole board to be in danger of reoffending on one of those... I mean, if we're talking about recidivism, those are the people who are likely to recidivate.

Mr. Michael Pierce: Except that a breach could be a relatively minor event that has absolutely nothing to do with the risk of recidivism per se. You can be detained again for anything minor, including having a beer in some instances.

The Chair: Okay, wait a minute. What about the person who comes to their two-thirds statutory release and they're denied the release because the parole board has determined that they are likely to recidivate? Could we add them?

Mr. Michael Pierce: I believe Mr. Lee raised this issue the other day. In those circumstances, I believe there would be some good constitutional arguments that we could make in regard to taking a sample from those people. I think it's a scheme that would have to have some careful tailoring done to it, because you want to look at why they are being detained. Is it in regard to a designated offence or not a designated offence? Right now, the possibility for detention after the two-thirds covers a very wide range of offences. In fact, we're finding that it's a nearly automatic thing in many instances.

• 1235

So there are some concerns about that scheme itself. As I understand it, the CCRA will be coming up for review. Is it before this committee?

The Chair: Yes.

Mr. Michael Pierce: That might be the time to fully clarify that scheme and then to make a consequential amendment for this. You wouldn't be losing anything, or not a great deal of significance, in those circumstances because it's retroactive.

The Chair: What you're saying is that argument appeals to you, but you'd like to see it done in conjunction with the CCRA review, if it's done.

Mr. Michael Pierce: That's correct.

The Chair: And you'll be back for that, will you?

Mr. Michael Pierce: I hope to.

The Chair: I'm just thinking ahead.

Mr. Jack Ramsay: Your point is very well taken.

The Chair: It's Phil's point.

Mr. Jack Ramsay: If the possibility of an individual repeating an offence is the basis upon which this particular section has been introduced into the bill, then I think, Madam Chair, you've made a very good point. At the conclusion or at the initiation of a parole hearing where a person is applicable or a person can apply for parole, if the reason that individual is denied parole is based upon the fact that there's a strong possibility they will repeat, that they're a danger to society, why do we not include in G-5 the taking of a DNA sample at that time if it is the criteria upon which you feel the Supreme Court would authorize a DNA sample, which is that there is a danger, there is evidence, that this person if released will repeat?

Mr. Michael Pierce: My colleague, Marian Haryman, may want to speak to the conditions in which parole may be denied. My understanding is—and I don't profess to be an expert in this area—that there is a range of situations or circumstances that go into that decision to allow or deny parole and they go—

The Chair: We're not talking about denying parole. We're talking about ordering somebody detained beyond their statutory release period.

Mr. Michael Pierce: I understood yours was to do that. I understood—

The Chair: I'm sorry.

Mr. Michael Pierce: —Mr. Ramsay's comment to be going beyond that and to be just considering the time of parole.

Mr. Jack Ramsay: The principle is the same.

Mr. Michael Pierce: The chair's consideration or proposal I think was somewhat narrower and does go directly to the risk of committing a dangerous offence. My understanding is it's not necessarily a risk of recidivism that's taken into consideration at that time. This is why it may be a useful discussion to have in regard to the CCRA.

The Chair: Let me just say that while we haven't voted on this stuff yet, the department might want to get ready to answer that question in relation to the CCRA, because I don't think we'll let it go.

Mr. Ramsay, did you have something else?

Mr. Jack Ramsay: That's it.

The Chair: Mr. Lee.

Mr. Derek Lee: Yes. Just going back to where we were about the logic of including DNA profiles from previously convicted persons, the reason why we are taking samples from previously convicted persons has nothing to do with the penalty they were assessed when they were convicted. The reason is that there is a perceived risk to the public. So to be logical, if we were to say in this statute that we will take a DNA sample from a person who has been convicted and we will take the sample at any time following the conviction, up to the point of release or sentence expiry, because we haven't said here when we're going to take the sample, in theory we take the sample not because it's part of the penalty but because there's risk on release.

Why is it that we are not in a position to take the sample from previously convicted people before release? It's the same class of risk to the public. It has nothing to do with the penalty that was assessed when they were convicted. It has everything to do with them having exhibited a risk to society. Their sentence is expiring. We think society should have access to that DNA profile and we are being advised here that there's a retroactivity problem. But that's only in relation to a logic that would relate the taking of DNA to the sentencing.

• 1240

This is not a sentencing issue, this is a risk issue. If we say we want to be in a position to take the DNA sample at any time after sentence expiry, why would you ask us to consider retroactivity at all? Why would you ask us to consider anything but risk to society?

Mr. Michael Pierce: It is in fact a sentencing matter. The taking of the sample upon conviction flows from the conviction and is an aspect of sentence. It's not a punishment, but it is an aspect of sentence, just as other treatment conditions, for example, could be an aspect of sentence that aren't punishment per se. So it does in fact flow from conviction, and that is our greater justification for being able to take the sample at time of conviction.

You're perfectly right, we cannot justify taking a sample from someone who was previously convicted before the coming into force of this legislation and base the taking of the sample in that situation on conviction, because that would, as I said, run contrary to the requirements of principles of fundamental justice.

That is the very distinction that's at the heart of it and why we need a greater justification if we're going to take the samples retroactively, well beyond the justification that exists or the more moderate concern of both the risk to society and the risk of re-offending.

We recognize that as a factor when we take the samples at time of conviction, but we don't need as clear a case of the risk of re-offending because it can flow from conviction, whereas if you take it retroactively it doesn't have the added benefit of flowing from conviction. Therefore, you need a stronger justification, and the stronger justification is the greater recidivism rate.

The Chair: Thanks.

I'll call the question on R-17.

(Motion negatived [See Minutes of Proceedings])

The Chair: I can call the question on G-5 as well, since we've fully discussed it, if somebody will move it. Mr. Maloney.

Mr. Paul Forseth: We have more discussion on G-5.

The Chair: Okay.

Mr. Maloney, do you move G-5?

Mr. John Maloney: I so move.

The Chair: Mr. Discepola, is there anything else you want to say on G-5? I think it's out there.

Mr. Nick Discepola: No.

The Chair: Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): I just have one question on “convicted of more than one murder committed at different times”. Basically, would somebody please explain to me the logic that a person who kills today and next week is going to be subjected to this, but if you walk in and hold up a bank and shoot four people all in one incident, you don't qualify? Would somebody please explain the logic there?

Mr. Michael Zigayer: We know it's quite unfortunate but true that by one simple gesture you can kill more than one person with one shot if you're using a firearm. We have a recent example of that. Of course, we also have the situation of... Fortunately, we don't have that in Canada, at least since Marc Lépine, of multiple homicides committed by someone taking a gun and going after someone.

This provision is intended to deal with the person who commits more than one murder, has premeditated the commission of the offence. This is not a situation that arises out of one specific incident. He's intentionally going out and killing again. It's an indication of recidivism, just as the repeat sex offender is someone who has committed one sexual assault and then gone off, perhaps a period of time later, and committed another sexual assault. There's an indication of recidivism right there.

I suppose you would say that one of the first people or types of people who would be caught by this repeat requirement would be the type of person who, other than Clifford Olson, is perhaps a contract killer, someone who's a Hell's Angel and is an enforcer and who has committed more than one murder. That's the type of person.

• 1245

The Chair: Can I just add to that? I'm just not getting into this at all, but what they're saying, I think, is that when the court takes a look at this it is going to apply a test. In order for us to fit the constitutional scheme in terms of our legislation, we need to fit into that test.

Part of the test is the test of whether Chuck Cadman or Fred Smith or Joe Blow is likely to commit this offence again. We know statistically and from research, and we'd have to prove that in court, that someone who has committed one murder, or a group of murders in the case you're talking about, Chuck, where they blow up a room or something like that—and that's what they have to go on—that may not be the type of person to recidivate. One-incident murderers don't always commit other murders afterwards. One reason is that they're in jail and another...but they also parole pretty well, compared to others.

So the issue then becomes who is likely to recidivate, and that category of people who have committed murder, which is a premeditated or intentional act, have already demonstrated that on different occasions. Statistically, if they're left to their own devices, they're likely to do it again, which means they may have done it at other times. So it catches serial killers; it catches people who do it for a living; it catches bikers and people like that that you can imagine.

But the others, who have just committed a group of murders at one time—not “just” committed, because it's all tragic—statistically may not fit there. I think that's the test. We don't want to shoot the messenger here. These guys are telling us what in their best judgment would fit the test.

How did I do?

Mr. Michael Zigayer: Perfect.

The Chair: Maybe I'll have another career after this.

Mr. Jack Ramsay: I understand that reasoning, but the flaw is the supposition that the known crime is the first crime.

The Chair: Yes, except the known crime is—

Mr. Jack Ramsay: It's the first crime and the only crime.

The Chair: To the court the known crime is the first crime.

Mr. Jack Ramsay: It is the first crime.

The Chair: That's the problem.

Mr. Jack Ramsay: Right. You talk to the police officers and crown prosecutors and they consider these other aspects. But I understand the rationale—

The Chair: But that's why we have courts.

Mr. Jack Ramsay: Yes. I understand the rationale.

The Chair: Derek and then John McKay.

Mr. Derek Lee: From the wording of this, I'm assuming that when we refer to murder we do not include manslaughter. So a person convicted of murder and then of manslaughter would not be caught by this or in the reverse.

The Chair: Oh, okay. I thought—

Mr. Derek Lee: Personally, I just would have thought that for any kind of homicide, any kind, if it happens twice I think we have a problem—or else the person is very unlucky.

Some hon. members: Oh, oh.

Mr. Derek Lee: That's an understatement. I would have thought that the criterion would have been double homicide, if we could find the right definition.

A voice: Just delete “at different times”.

Mr. Derek Lee: No, I'm sorry, but by double homicide I don't mean “at the same time”. I mean twice unlucky, two homicides separated by one month or 10 years. If a person has killed twice in separate incidents... How can I say it better? “Houston, we have a problem”. Yet that's not caught here. Why wouldn't we refer to homicide as the criterion as opposed to just murder?

Mr. Michael Pierce: If you include homicide, you'll include things like vehicular homicide. If somebody has committed a murder, say, either during the commission of another offence or during a crime of passion, for example, where... As the chair has indicated, normally we would see a very low recidivism rate in regard to an individual who commits a single murder like that.

If there is then a vehicular homicide, that would be no indication that the person is likely to commit any other murder or offence again. That doesn't indicate any kind of pattern. The fact that there's a vehicular homicide may have no relation to and the circumstances may bear no relation to the kinds of circumstances involved in the commission of the murder, or, for that matter, manslaughter and vehicular homicide. So that category would certainly be over-broad. It would certainly capture a group of people for whom there is no increased recidivism rate.

The Chair: Thank you.

Mr. John McKay, and then we're going to vote on this and take a little break.

• 1250

Mr. John McKay: This reaches a level of logical absurdity that would do credit to Kafka.

So Jacques commits a crime. He shoots one person one week and one person the next week. He's in, and he's going to be banked.

Paul commits a crime. He shoots one person at 10 o'clock. At 10.05 he decides to come back and finish the job. He does it, but he's not in.

The Chair: He might be.

Mr. John McKay: I said at different times.

The Chair: He might be.

Mr. John McKay: The thing is, why leave “at different times” to give that kind of an opportunity for logical absurdity? I'm just not persuaded that when somebody has committed more than one murder the timing is not really relevant.

More than one is more than one. Just leave it at that, and you make your argument at the Supreme Court on the assumption that it's challenged, rather than building into the legislation the weakness of the argument.

The Chair: But, John, the incident isn't challenged; the section of the act is challenged.

Mr. John McKay: The section is challenged.

The Chair: That's the problem.

Mr. John McKay: I understand, but presumably it's going to be challenged by somebody who's already in jail. We have our pool of baddies. We know who they are, and by definition they have been found to be criminals. Part of being a criminal is the assumption that these people may well recidivate.

So you're already working on a rolling argument here. Why take away from your rolling argument by putting in the phrase “at different times”?

Mr. Michael Pierce: It's precisely because of the fact that we do need to justify it on the basis of recidivism.

Consider the fact of somebody killing two people in one instance.

Mr. John McKay: You can justify that at the point of argument, rather than in the legislation. When you're standing before Mr. Justice So-and-So and you're making your argument, you're going to be justifying this section, however it will go forward, on the basis that you think this section is justified on the basis that these are the kinds of categories of people who will recidivate. So why say that here? Why not say that in the court?

Mr. Michael Pierce: I'm not sure if I follow the argument.

For instance, if we included just anyone who has committed homicide we would face a challenge.

You're certainly right that I would be there defending the challenge with all my gusto. In defending that challenge, the defence counsel is going to ask: on what basis did you draw these lines, including all people who commit homicide? We would say that homicide is a very serious offence, and so on, and we would point out some of the instances in which there may be recidivism. Then the response from defence counsel would be that we had caught a category of people for whom the recidivism rate is extremely low.

The Chair: Because the legislative scheme has to fit the charter, not just that one incident. That's the problem.

Anyway, let's call the question. Those in favour of government motion G-5? Those opposed?

(Amendment agreed to [See Minutes of Proceedings])

The Chair: Let's rise for a few minutes. Don't go away, committee members, but please have some lunch.

• 1254

• 1302

The Chair: Let's get back to work.

Mr. Ramsay, you wanted to withdraw motion 18?

Mr. Jack Ramsay: Yes, because it was consequential and it was dependent upon the former amendments, which didn't pass. I withdraw this.

The Chair: Reform motion 18 is withdrawn. That still leaves Conservative motion 15. When Mr. MacKay gets back we'll deal with that.

Page 61, Reform motion 19.

Mr. Jack Ramsay: Madam Chair, I would withdraw this one as well, because it had to do with the taking of samples at the time of charge instead of conviction.

The Chair: All right.

Government motion 6, on page 57. I'm sorry, we haven't done G-4, but it's related to PC 13, so we'll wait until Mr. MacKay gets here. We'll go to government motion 6.

• 1305

Mr. John Maloney: I so move.

The Chair: Mr. Discepola, do you want to give us the benefit of your wisdom on this?

I take it this sets up criteria. Does it result from the concerns people had about privacy?

Mr. Nick Discepola: There are two things, Madam Chair. First, it provides direction, whereby the judge would have to take into account the previous criminal record and history of the individual in the retroactive scheme; the nature of the offence, the criminal record, the circumstances surrounding the commission. The proposed new subsection would also provide criteria that are the same as those currently set out in the bill for offenders convicted of designated offences. We're just tying up that little loose end.

(Amendment agreed to [See Minutes of Proceedings])

The Chair: Mr. Maloney moves G-4. It's page 48 in English, page 49 in French.

Mr. Discepola.

Mr. Nick Discepola: It's just a technical amendment, Madam Chair.

Mr. Michael Zigayer: Formerly the bill had said court of appeal. We realized you could get a conviction on a summary conviction assault and couldn't take that to the court of appeal. There's more flexibility this way.

The Chair: It allows them to go to the appropriate court they would be going to if they were appealing their conviction.

Mr. Michael Zigayer: Right.

(Amendment agreed to [See Minutes of Proceedings])

The Chair: Mr. MacKay. I think we're at PC-8.

Mr. Peter MacKay: Page 39.

Madam Chair, when we were going over Reform motion 11 at page 36 I made a note that for all intents and purposes this is the same, the only difference being that we were not suggesting the entire two proposed paragraphs be repealed, only that proposed paragraph (a)...just taking that discretion away from the prosecutor.

The Chair: No, you can't.

Mr. Peter MacKay: You can. Not always. But given the fact that the Reform motion was defeated, I withdraw that motion.

The Chair: Thank you.

PC-9.

Mr. Peter MacKay: PC-9 would be withdrawn too, Madam Chair.

• 1310

The Chair: Thank you. PC-9 is withdrawn.

PC-10.

Mr. Peter MacKay: The proposal here is that clause 17 of this bill will be amended at proposed subsection 487.051(3) by adding

security of the person, on the public interest in the protection of society and on the proper administration of justice which is to be achieved through early detection, arrest and conviction of offenders. The courts shall give reasons for its decision.

This is consistent with the entire criteria of the bill—the public interest, the use of the DNA data bank, and its root aim to first and foremost protect the public. I'm suggesting the amendment is in the spirit of what this bill sets out to do, and it sets it out explicitly in that language.

The Chair: Comments?

Mr. Discepola.

Mr. Nick Discepola: We believe proposed paragraph 487.051(1)(b) already refers to the requirement of the court to be satisfied and that it's in the best interest of the administration of justice in authorizing the taking of samples. So we view this amendment as unnecessary.

The Chair: Do you want to comment further, Mr. MacKay?

Mr. Peter MacKay: If that's the case, why do you include that language in proposed subsection 487.051(2) but not in proposed subsection 487.051(3)? Proposed subsection 487.051(2) talks about being grossly disproportionate to the public interest and the protection of society.

Ms. Marian Harymann: Michael Pierce correct me if I'm wrong, but proposed subsection 487.051(3) deals with the individual factors to be taken into consideration, whereas proposed paragraph 487.051(1)(b) deals with the administrative issues, administration of justice.

Mr. Michael Pierce: As I understand it, if you look at proposed paragraph 487.051(1)(b), it already makes reference to its being in the best interest of the administration of justice. That's the concluding sentence. There isn't a similar reference in proposed paragraph 487.051(1)(a). This is why, as a result, proposed subsection 487.051(2), which deals with proposed paragraph 487.051(1)(a), has to include that language and those references, but proposed subsection 487.051(3), which refers to proposed paragraph 487.051(1)(b) that includes the reference to the administration of justice, doesn't require an additional reference to the proper administration of justice.

Mr. Peter MacKay: But proposed paragraph 487.051(1)(a) is primary designated offences and proposed paragraph 487.051(1)(b) is secondary designated offences. So shouldn't the public interest be included in proposed paragraph 487.051(1)(b) as well?

Mr. Michael Pierce: In referring to the best interests of the administration of justice there, that's where it is capturing—

Mr. Peter MacKay: But it doesn't capture proposed paragraph 487.051(1)(b). I'm reading from proposed subsection 487.051(3).

In deciding whether to make an order under paragraph 1(b), the court shall consider the criminal record of the person or young person, the nature of the offence and the circumstances...

I'm saying why shouldn't you also consider the public interest in the secondary offences? Why would you exclude that?

Mr. Michael Pierce: The point I'm making, and there may be some room for further clarification here, is when it refers to proposed paragraph 487.051(1)(b) here, it then refers back to taking into consideration that it has to be in the best interest of the administration of justice, because that's what (1)(b) provides and requires. It would be redundant to put it in 1(b), and to then put it in (3) as well.

• 1315

Mr. Peter MacKay: But you do so in (2). That's my point.

Mr. Michael Pierce: But (2) is referring to (1)(a), and there is no reference to administration of justice in (1)(a).

Mr. Peter MacKay: Okay, I see.

Mr. Michael Pierce: They've just been structured differently.

The Chair: Thank you. All right. Those in favour of motion PC-10? Those opposed?

(Amendment negatived)

The Chair: Okay, next we have motion PC-12, on page 47.

Peter MacKay.

Mr. Peter MacKay: Madam Chair, we're suggesting that we amend clause 17 by replacing lines 4 to 9 on page 16 with the following:

advised by the person or young person, that they

The reason we're suggesting this—and again I know the government's response to this is that it's not necessary or that it is duplicitous—is that the purpose here would be to take away the ability of the crown to strike a plea bargain to avoid having a young person giving his or her DNA. This takes that discretion away, because I suggest that simply goes against the reasons and objectives for creating the DNA databank. We're giving an out. I know the response from the government is that they already have an out, that they can do it at the earlier stage, but I don't see the necessity of having in the act that ability to negate taking the DNA.

The Chair: Any response, Mr. Discepola?

Mr. Nick Discepola: Madam Chair, that's the weakness you have when you give the members of the opposition a government response in advance.

The Chair: But hasn't it made for a much better day?

Mr. Nick Discepola: It has—and a much better bill, I would add.

There may also be cases, Peter, in which a profile may already exist. A person may have voluntarily given consent to having the profile already included in the offender index, for example. In that case, we want to maintain the discretion so that the prosecutor could simply advise the court that there's already a sample there, and to therefore take that sample.

Mr. Peter MacKay: So it's a cost-saving measure as opposed to a discretion that's going to be exercised.

Mr. Nick Discepola: It's more of an administrative one than a cost-saving one.

Mr. Peter MacKay: But the possibility does exist for a prosecutor to say the crown is not going to take the DNA on this if the accused pleads to a lesser included offence.

Mr. Michael Pierce: There's no possibility for that in the sense of a plea bargain. You could certainly plead to a lesser offence that didn't bring you within the scope of this to start with, but then this provision wouldn't apply regardless of how it was done.

Mr. Peter MacKay: But that discretion is there. The prosecutor could say to the accused to plead to an offence that's not included in this primary or secondary list, and to therefore avoid giving DNA.

Mr. Michael Pierce: That's always technically a possibility, and no amendment here is going to address that. As I understand the amendment here, your concern would be that when someone is prosecuted for one of the designated offences, the prosecutor could strike a plea bargain by saying that if the accused was to plead, the prosecutor would say to the court that it would be unnecessary for the accused to provide DNA.

Mr. Peter MacKay: That's right.

Mr. Michael Pierce: The requirement that the prosecutor can only do that where it's not required for the purposes of the act, though, means that it's not an open-ended discretion. It means they can only notify the court if it's not required for the purposes of the act.

• 1320

So it's not something that's subject to plea bargaining away. It's only when it's not needed because, for instance, it's already there in the data bank. It's only an administrative measure. It doesn't leave an opening for plea bargaining.

Mr. Peter MacKay: Okay. I accept that.

I'll withdraw PC-12.

The Chair: We already know that PC-13 is withdrawn. That leaves 14, 15, and 16, Mr. MacKay.

Government amendment 5 has already passed, so we will go to PC-15. Is that okay?

Mr. Peter MacKay: That's fine.

The Chair: We're on page 56, then, and PC-15.

Mr. MacKay, Mr. Ramsay has just pointed out to me that this is the same as R-18, which was withdrawn, so we have to deal with yours as well.

It was withdrawn because an explanation was given?

Mr. Jack Ramsay: No, it was consequential.

The Chair: Okay. I've got it.

Mr. Jack Ramsay: If the previous motion had been passed, then all of this section would have been redundant.

The Chair: Thanks, Jack.

Mr. Peter MacKay: Amendment PC-14 is withdrawn, Madam Chair, along with 15 and 16.

The Chair: Thanks, Mr. Mackay.

Mr. Peter MacKay: Actually, PC-16 is not withdrawn.

The Chair: It's still alive?

Mr. Peter MacKay: Yes.

The Chair: Oh, oh; a card laid is a card played.

We're on page 59, PC-16.

Mr. Peter MacKay: Madam Chair, we discussed this one at the informal session. What we're suggesting here ties into the same argument with respect to the timing of the taking of DNA, where a person on parole would be summonsed to appear at a designated place to provide a sample as opposed to the discretion of the police to simply detain the parolee when reasonable cause exists for the taking of a sample.

We're saying that sometimes—for example, with substituted service—if the criminal has the heads up that he's going to be picked up for sampling, or he or she is to appear for sampling and they know they're involved in a serious offence, they're not going to show up. A simple summons is basically a warning.

The Chair: Thank you.

Mr. Discepola.

Mr. Nick Discepola: Thank you, Chair.

I believe if you look at proposed section 487.058, Peter, you'll see that the bill already authorizes the issuance of a warrant on the arrest of a conditionally released person if that person does not report as set out in the summons.

• 1325

Mr. Peter MacKay: It still doesn't answer the question about the issuance of a summons in the first instance. That arrives at the accused's door and he's gone. Then he doesn't show up. Then you get a warrant. He has already left the country.

Ms. Marian Haryman: If I may add, already parolees are subject to a number of rigorous conditions. They have to report to their parole officer regularly. It might be weekly; it might be monthly. If they don't show up, then they're at risk of possibly having their parole suspended and revoked, and then they are returned to custody.

To assume from the outset that they're not going to show up because they've been issued with a summons to provide a sample...we don't have any basis to assume that this is a correct assumption, because they are already required to report regularly. That's the fundamental difficulty we have with this proposal. In the event they don't show, we have the mechanism that you've suggested.

Mr. Peter MacKay: Okay, but with respect, the person is on parole because they've been released early. They're not serving their full sentence. So they're not in the same category as you and I and the people around this table who have certain liberties.

If it comes to police attention that they may be involved in a criminal offence, why are we so worried about going through a process of serving them with a summons? Why don't we have something in this act that gives the police the ability to go and pick them up and bring them in for sampling? They've already forfeited some of those liberties.

Ms. Marian Haryman: Then we would be able to issue a warrant to take a sample for the purpose of a criminal investigation, but this provision applies to the retroactive taking of a sample. In this case, we don't have necessarily a suspicion that they've been involved in a particular criminal offence; it's just a matter of going out and taking samples for the data bank.

Mr. Peter MacKay: A random check.

Ms. Marian Haryman: That's right.

Mr. Peter MacKay: Again, I ask the rhetorical question: what's wrong with that? If there are unsolved crimes out there, and this is one of the underpinnings of this act, what's wrong with having the police go out and pick up somebody for the purposes of taking a DNA sample that might result in a positive match that's going to solve a crime?

Ms. Marian Haryman: Though we fully agree with you, we just don't feel it is necessary to detain the person for that purpose. We feel—and I've mentioned this to you before—that given the low risk associated with parolees... I know there are some exceptional cases that go wrong, and you have every reason to be concerned about that, but in the majority of the cases, these are the best risk cases and they're already meeting the requirements of their parole, so we have no reason to believe they're not going to show up as required by a summons.

In the event they don't, then we can detain them as you have suggested.

Mr. Peter MacKay: By getting a warrant and trying to find them after the fact.

Mr. Michael Pierce: There is a real administration of justice concern here, which is, we'd certainly rather have the police spending their time actively solving crimes than having to pursue the arrested individuals in all of these cases where it may be much more efficient to pursue a summons, have the individual report, and take the sample in that way, rather than using police resources for the pursuit and arrest of all these individuals.

Mr. Peter MacKay: My counter-argument to that is they're going to show up. Whether it's to show up to arrest them or detain them or whether it's to show up and serve them with a summons, it takes the same amount of resources, and if they're gone in either case, again, you're not expending any more energy to go out there and serve them with a summons or to go out there and find them and have the right to detain them, then and there.

Mr. Michael Pierce: With respect, I believe it takes a lot fewer resources to proceed by way of summons than by way of arrest. You can serve a summons. It doesn't always have to be served personally.

The Chair: In major cities they use cadets to serve all their summons.

Mr. Michael Pierce: Exactly; they use cadets. There are a number of ways it's done that differ from arrest.

Mr. Peter MacKay: What this section does is put your faith in a parolee.

The Chair: Thanks, Mr. MacKay.

Mr. Ramsay.

Mr. Jack Ramsay: I see the argument Mr. MacKay is making and I think it's a sound one.

If a person has left their DNA at an unsolved crime and they're served with a summons to appear to give a sample, and they know it's going to be matched with a crime they've committed, or even suspect it will be, are they going to respond to the summons?

• 1330

Ms. Marian Haryman: Are you talking about the warrant scheme in the course of the criminal investigation?

Mr. Jack Ramsay: No, I'm talking about a person on parole who's served with a summons to appear to give a DNA sample—

Ms. Marian Haryman: No. This is only for the purpose of the retroactive scheme where you have no reason to suspect—

Mr. Jack Ramsay: That's what I'm talking about.

Ms. Marian Haryman: —necessarily that they have been involved in a criminal offence. You just want to take their sample for the purpose of putting it into the data bank.

Mr. Jack Ramsay: Yes, I understand that, but I'm asking about the position this places the justice system in, and particularly the police. If they serve a summons on a parolee who has left his DNA at the scenes of unsolved crimes, what is that person going to do? Is that parolee going to turn himself in and give a DNA sample? This is what Mr. MacKay is saying. He'll be long gone.

Rather than warn the individual that he's going to have to supply a DNA sample that could link him to a crime scene—then he's going to be gone—he's suggesting a warrant.

Mr. Nick Discepola: But wouldn't he be recaptured back in the system, Jack? Unless he leaves the country. How's he going to leave the country?

Mr. Jack Ramsay: There are 60,000 a year they have problems with in this very category. They simply skip bail, on probably a lot less motivation than if they've left their DNA clinging to the walls somewhere at the scene of some crime.

The Chair: Mr. Ramsay, there are not 60,000 under federal sentence right now.

Mr. Jack Ramsay: No, but across the country—

The Chair: Are you talking about bail skippers and probation skippers and parole skippers?

Mr. Jack Ramsay: Not parole, but—

Mr. Nick Discepola: That's something else, Jack. We're addressing people on conditional release here, and there are other—

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): I take offence, because there may be 60,000 cases of people who have not met the requirement of bail, but how many of those then subsequently do? Anyone listening to you would think you have 60,000 people running around Canada who are wanted. That's not the case. Get your facts straight.

Mr. Jack Ramsay: The whole message here with regard to this particular amendment is that if someone is on parole and you serve them with a summons to give DNA evidence that may link them to the scene of a crime, do you really think they'll show up?

Mr. Nick Discepola: Why would issuing a summons force them to show up in any case? There are other conditions—

Mr. Jack Ramsay: A summons wouldn't.

Mr. Nick Discepola: But there are other conditions of parole that this person would have to fulfil.

Mr. Jack Ramsay: But they could vacate their parole. We would have them vacating their parole.

Mr. Nick Discepola: So we would have to arrest them in that case.

Mr. Jack Ramsay: Yes, then a warrant—

Mr. Nick Discepola: They would get back into the system.

Mr. Jack Ramsay: After the fact. You have to locate them.

Mr. Nick Discepola: With a summons you don't have to locate the individual?

Mr. Jack Ramsay: No, but it would follow a warrant. The summons would follow a warrant, whereas if a warrant were issued, someone with authority would take the person into custody—

Mr. Nick Discepola: The crux of the matter is you still have to go and get the individual to take his or her DNA sample.

Mr. Jack Ramsay: But you're not warning them ahead of time. The summons is a warning that you are to give your DNA.

Mr. Michael Pierce: It may be that we're talking about rather smart criminals here, because we know in fact that the majority of those will turn themselves in for the taking of the sample. Those really smart ones probably get enough warning from the fact that the legislation comes into effect and they know they're going to have to provide a sample. Whether it's by summons or arrest warrant, they're going to have to provide a sample. So the legislation itself is notice.

Mr. Jack Ramsay: I'm ready for the vote.

The Chair: Okay, let's call the question on this. This is PC-16.

(Amendment negatived [See Minutes of Proceedings])

The Chair: PC-17...your next batch is gone, is that right?

Mr. Peter MacKay: Yes.

The Chair: Thanks.

So now we have an amended clause 17.

(Clause 17 as amended agreed to)

The Chair: Congratulations. We're on the other side of the hill, folks.

(On clause 18)

• 1335

The Chair: Motion 20 is withdrawn.

Government number 7, Mr. Maloney, will you move that?

Mr. John Maloney: So moved.

The Chair: Mr. Discepola, can you explain it?

Mr. Nick Discepola: Madam Chair, in view of the fact that we've expanded the retroactive scheme, this is just a consequential amendment recognizing that either a provincial court or a tribunal could be called upon.

The Chair: Is there any further discussion?

(Amendment agreed to—See Minutes of Proceedings)

(Clause 18 as amended agreed to)

(On clause 19)

The Chair: On clause 19, PC-21 has been withdrawn. We have G-8, Reform 20, and BQ-9. Does anybody move BQ-9? I have some information that it's to be withdrawn. So we'll just note that, but it's not been introduced.

As for G-8 and Reform 20, who wants to go first? Jack?

Mr. Jack Ramsay: Reform 19 has not been withdrawn.

The Chair: Where is it?

Mr. Jack Ramsay: Or has it?

The Chair: Yes, it was consequential.

Mr. Jack Ramsay: Oh, I'm sorry.

The Chair: That's okay, Jack.

Let's go with Reform 20.

Mr. Jack Ramsay: All right.

A voice: No, it should be government first.

The Chair: G-8, sorry. I didn't know there were rules about that.

Mr. Nick Discepola: Madam Chair, this is in keeping with the commitment to Mr. Marceau that we would allow the person to show their preference and that there would be an obligation to take the sample based on that preference.

The Chair: Is there any further discussion on that?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Reform 20, Mr. Ramsay.

Mr. Jack Ramsay: Yes, thank you, Madam Chair.

This is an amendment that follows the proposed subsection on page 21 that reads:

(3) A peace officer who takes samples of bodily substances from a person, or a person who takes such samples from the person under the direction of a peace officer, shall ensure that the person's privacy is respected in a manner that is reasonable in the circumstances.

My amendment reads:

(4) The validity of using a bodily substance for purposes of a forensic DNA analysis of that substance shall not be questioned on the ground that a peace officer failed to comply with any provision set out in subsection (1), provided the peace officer did so inadvertently.

That is to protect DNA evidence from being thrown out simply based upon the fact that a peace officer inadvertently failed to follow what the court might consider a prescribed procedure.

The Chair: Is there any discussion?

Mr. Nick Discepola: Yes, Madam Chair. Proposed section 48.07 is consistent with section 25 of the Criminal Code and it contributes to the charter viability and the reasonableness of the whole scheme.

Mr. Ramsay, if you amend the proposed section to allow the sample to be used as evidence when it was obtained unlawfully, it's a very serious weakness in the legislation.

I would put forth also that if the police officer investigating realized it was taken unlawfully or didn't follow the proper procedures, they would still have the alternative to re-sample the individual anyway and get an appropriate sample and analyse it at that point in time.

I wouldn't want to get into an O.J. Simpson case here.

Mr. Jack Ramsay: Yes, okay. I hear what you're saying, and yet this would provide, in, I suppose, those rare cases where that sample would be key, that the court could decide whether or not the peace officer did in fact unlawfully, by ignoring the prescribed procedure, take that sample. Let the court decide whether it was inadvertent or it was wilful.

• 1340

Mr. Nick Discepola: But why can't they just take another sample and make it lawful? Just the word “unlawful” to me...

Mr. Jack Ramsay: Well, it's not unlawful. It's just that they inadvertently failed to—

Mr. Nick Discepola: But how would the evidence even be admissible if it wasn't taken following the proper procedure? I'm not a lawyer. Maybe a lawyer can answer that.

Mr. Jack Ramsay: The inadvertent oversight in gathering or taking the sample, if there was no wilful intent to violate the procedure, should be considered. That's basically the thrust of the amendment.

The Chair: Michael.

You must be the only official we call by the first name. It's certainly easy for us to remember.

Mr. Michael Zigayer: When everyone tries to tender evidence in court in a prosecution and that evidence was obtained under a warrant, there are two questions the court will ask in determining whether to admit that evidence. One is, was the warrant itself obtained in compliance with the law? The second is, was the warrant executed in compliance with the law? Both are very important.

This proposal goes some distance towards saying almost, well, we'll take it out of the hands of the court to determine the admissibility where the police haven't respected the requirements of the law. If anyone knows the Supreme Court in the last while, with Feeney and other cases like that, we know they are always holding the police to a very high standard, especially when your procedure is black on white.

The second point I would like to make is that the police officers embarking on a DNA-related investigation are normally the senior officers, the experienced investigators. In the case of the RCMP it's the GIS. In the case of Toronto they have a homicide squad. We met one of their people who was involved in the Christine Jessop investigation. These are the type of people who are going to make sure every requirement of the law is going to be respected, because they know about continuity and they don't want to have anything happen in the course of the execution of the warrant that might prejudice the admissibility of that evidence in court later.

I guess in one sense I'm saying it's not really needed, because the police take care now. We're dealing with experienced police officers who are going to be involved in this type of work. It's not going to be a raw recruit who is going to be asked to go out and arrest somebody and everywhere other than in Quebec collect the bodily samples. It will be somebody who knows the law.

They get drilled in this in the provinces. In Ontario, for example, they have given courses to the police officers who are going to be involved in the execution of these DNA warrants to make sure they are familiar with the requirements of the law.

Mr. Jack Ramsay: I thank you for that. My question is if the peace officer, one of these qualified people, who has taken the DNA sample has inadvertently forgotten something, then that DNA sample should be discarded.

Mr. Michael Zigayer: I'm not saying it should be—

Mr. Jack Ramsay: Or will be discarded, and should be?

Mr. Michael Zigayer: The question for the crown and the police to discuss will be whether to proceed with the evidence we have, which may have a problem with it if we try to have it admitted in court, or simply to go and get another DNA warrant under 104—

Mr. Jack Ramsay: No, I'm sorry, I want to be specific. If it's brought before the court and during cross-examination or direct examination it's revealed that the peace officer inadvertently failed to follow exactly the procedures, then that court will throw the sample, the evidence, out.

• 1345

Mr. Michael Zigayer: I'll let Michael continue in a moment. I want to say that I understand the court still has discretion to admit that evidence, especially in the case where it's an inadvertent error by the police officer.

Mr. Jack Ramsay: Could you point us to the authority or the protection for that?

Mr. Michael Pierce: I can only refer to the fact that it is clear in the case law. I can't quote you a case off the top of my head. It is clear, though, that merely a technical discrepancy between, for instance, a warrant requirement and what is required where they've signed in the wrong place, or dated something incorrectly, can be admitted. Any of those technical deficiencies through inadvertence can be cured by the court at the time and won't result in throwing out cases.

Now, if something substantial is done, a substantial violation of the requirements, even though done inadvertently, may pose a problem. But that's exactly the weighing the court goes through.

Mr. Jack Ramsay: Do you consider the provisions of subsection (1) to be anything but technical, or more than technical? I'm referring, of course, to my amendment to subsection (1) and that sets out the procedure.

Mr. Michael Pierce: It would really depend on the particular circumstances of the case. In some circumstances they may be merely technical. In other circumstances it could be a serious problem.

Mr. Jack Ramsay: If you feel the court would take that into consideration now, the inadvertent omission, what's the problem with this amendment going in?

Mr. Michael Pierce: There are a few problems with it. The first is that it says the court shall not question. That precludes the court from even going through the process of questioning whether this is merely a technical breach or a significant breach. The court isn't in a position to ask that question. Closing the court's consideration in that way, in my view, will lead to a section 8 concern under the charter, and that's where we'll get into a problem.

The Chair: Thank you.

Those in favour of Reform motion 20, please signify.

(Motion negatived [See Minutes of Proceedings])

(Clause 19 as amended agreed to)

(On clause 20)

The Chair: PC-22 has been withdrawn, but we still have Reform-21. That's on page 74.

Mr. Jack Ramsay: This has been dealt with. This is another one dealing with whether or not the DNA sample should be taken after charged or convicted. I withdraw this.

The Chair: Thanks, Jack.

Mr. Jack Ramsay: We've dealt with it.

The Chair: We're moving right along.

(Clause 20 agreed to)

(On clause 21)

The Chair: Clause 21 still has Reform motion 22 attached to it. It is page 78 in the booklet.

Mr. Jack Ramsay: To appease those concerned about the DNA information being improperly used, we would make it strictly an indictable offence rather than a dual offence.

Madam Chair, we heard considerable testimony about the improper use of the DNA bank, so let's reinforce the comfort zone for those people by making this offence, to use it improperly, an indictable offence only.

The Chair: In the government proposal right now it's a hybrid offence, which gives the crown discretion as to whether it should look at the facts and proceed by indictment or proceed by summary procedure.

(Motion negatived [See Minutes of Proceedings])

• 1350

(Clause 21 agreed to)

(On clause 22)

The Chair: Mr. Maloney moves amendment G-9, page 79. Mr. Discepola will speak to it.

Mr. Nick Discepola: Madam Chair, we're essentially responding to the electronic image again and the destruction of it. After the testimony, we've beefed up the legislation to refer to the fact that we could actually remove the link.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 22 as amended agreed to)

(On clause 23)

The Chair: Next are amendments G-10 and G-11. Mr. Maloney moves G-10. Mr. Discepola can speak to G-10, on page 83.

Mr. Nick Discepola: It's just technical, Madam Chair. We're renumbering.

The Chair: All right.

(Amendment agreed to [See Minutes of Proceedings])

The Chair: Mr. Maloney moves amendment G-11. That's at page 86.

Again, this does what?

Mr. Nick Discepola: It essentially addresses the retroactive scheme whereby we give the provincial court judge the discretion.

The Chair: Okay, it follows along with the others.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 23 as amended agreed to)

(On clause 24)

The Chair: Amendment G-12 is moved.

Mr. Discepola.

Mr. Nick Discepola: These are, again, technical amendments based on the retroactive scheme expansion that we proposed before.

The Chair: These all relate to the amendments to the retroactive scheme to allow it to be carried out.

Mr. Nick Discepola: That's right.

Is there any further discussion?

(Amendment agreed to [See Minutes of Proceedings])

(Clause 24 as amended agreed to)

(Clauses 25 and 26 agreed to)

The Chair: I have to go back to clauses 5 and 16. There are no amendments.

(Clause 5 agreed to)

(Clause 16 as amended agreed to)

The Chair: Shall clause 1 carry?

Some hon. members: Agreed.

The Chair: Shall the title carry?

Some hon. members: Agreed.

The Chair: Shall the bill carry?

Some hon. members: Agreed.

The Chair: Shall the committee order a reprint for use at report stage? Mr. Maloney moves that.

Some hon. members: Agreed.

The Chair: Shall I table the bill in the House as the sixth report of this committee with amendments?

Some hon. members: Agreed.

The Chair: Thank you.

Mr. Nick Discepola: Could I take the time, Madam Chair, to thank you personally and to thank the members of the committee for all their collaboration. I'd like to thank the officials also. I think this is a good example that when we put our heads together and work together as a committee, we can come up with good legislation.

The Chair: I think it was a good experience for all of us.

You can tell the minister for us—I think I speak for everybody—that for him to respond in advance to concerns of committee members, including and in particular opposition concerns, is great.

• 1355

Stay with us now. We have a draft report here that you have in your hands. I told you earlier that it was my executive decision to instruct Phil to do it. There is a preamble that goes through Bill C-104 and what has happened since it was enacted, but the fact is that there hasn't been sufficient appellate court review of the legislation to give us a clear idea of what has happened or could happen to it.

But Bill C-3 substantially amends it, so this draft recommends first that Bill C-104 from the last Parliament be reviewed in five years under clause 13 of Bill C-3 at the same time as the impact of C-3 is assessed. Keep in mind that C-3 has to come back for assessment.

There's a second recommendation, though, that I think is important, and that is, it recommends that the Department of Justice and the Department of the Solicitor General—and some people who are here may want to plan their future careers by this—monitor the implementation of C-104 and C-3 until the five-year parliamentary review required so that they can then provide us with an evaluation of the provisions and the operation of both pieces of legislation.

So in that way we're sure somebody is keeping track of it and that we can hear about either the ongoing success or the failure of it from time to time. We can also be sure that there will be a compilation and report for us then.

Derek, do you want to speak to that?

Mr. Derek Lee: I gather from what we're doing now, Madam Chair, that you want us to consider adopting this report now. I think there have been enough issues raised in the consideration of C-3 such that I, for one, would like an opportunity to be a bit more clear on some of the reasons why certain things happened and certain things didn't happen. This is an opportunity for us to put on the record for those who will follow—and it could be ourselves—where we think the thing is headed.

I'm not ready to adopt this yet. I've just read it.

The Chair: Okay.

Mr. Derek Lee: I'd like some more time to add to it.

The Chair: We'll put it under future business for Tuesday. No problem.

Is everybody agreed?

Some hon. members: Agreed.

The Chair: Okay. It's gone to future business and we're out of here.

Thank you very much. Have a good weekend. The meeting is adjourned.