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, February 19, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're back and we're still on DNA.

Today's witnesses are Steve Sullivan, who is the executive director of the Canadian Resource Centre for Victims of Crime; Erin Hatfield, research director from Victims of Violence; and Robyn Segal, who is also with the same group. And from CAVEAT... Now, who is this person? We've never met her before. Priscilla de Villiers.

Welcome. I understand that you each have something separate to say, so why don't we go in that order. Steve, we'll start with you and end with Priscilla.

Mr. Steve Sullivan (Executive Director, Canadian Resource Centre for Victims of Crime): Thank you, Madam Chair. As always, it's a pleasure to be before the committee.

Before I begin on Bill C-3, I'd just like to take this opportunity to thank the committee for the unanimous agreement to review the two parole board reports of Michael Hector and Raymond Russell. I've worked with the families, and on behalf of them please accept their gratitude for looking into those cases.

I started my brief, Madam Chair, with what I thought was an interesting and poignant quote by Madam Justice Claire L'Heureux-Dubé, which she made before the Canadian Criminal Justice Association in 1997: “When reviewing the constitutionality of such techniques”—and she was referring to DNA—“it would be wrong to assume that a technique is invalid simply because it makes it more difficult for a criminal to evade detection”.

I think that's very appropriate when we talk about DNA and about constitutionality and charter challenges—that this kind of evidence will identify the guilty and, as we have seen, will exonerate the innocent.

I was very glad and pleased to hear the minister, when he appeared before you, make comments that he was willing to consider amendments to this bill and he would seriously listen to the recommendations brought forth by this committee. Sometimes we witnesses get the impression that we're almost wasting our time, that the bill is set in stone. But this time the minister made it quite clear that he will consider recommendations, and we're very pleased with that.

Let me just state that we are very pleased that the government has seen fit to bring forth legislation for a DNA data bank. Bringing the technology of the justice system up to par with the current science I think is a very positive initiative.

There are three main concerns we have with the current bill. The main concerns are the time when the samples are taken, the retroactive or retrospective portions of the bill, and the exemption provisions from the bill.

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I think it's important to start at a certain point. When I looked at this bill I sort of asked myself three basic questions. First, will a DNA data bank help solve unsolved crimes? I think we all agree that it will. Will it help prevent crimes? I think we all agree that it will. Will it, in the long run, save money? I think we all agree that this will happen as well.

Despite what the National Action Committee on the Status of Women testified to when they appeared before you, this bill will help women. It will help solve unsolved murders and unsolved sexual assaults involving women. But it will go even further than that. NAC didn't mention children. It will help solve crimes involving children as well. God forbid, it might even help solve crimes where men were victims as well. That obviously wasn't something NAC was concerned about, but as organizations that represent all victims, it's a concern of ours.

My basic contention is that DNA evidence is really no different from fingerprinting, except for what DNA samples can tell us about people, or will one day be able to tell us about people. But that's not what this bill is about. This bill is about using DNA evidence to identify criminals.

Mr. Scott made the point when he appeared before you that the taking of fingerprints does not have the same impact on the privacy of individuals as the taking of DNA samples. He went on to say that there are distinct differences between the taking of a fingerprint and what that reveals and the taking of a DNA sample.

The basic point I'm trying to make is there's no real difference between taking DNA samples and taking fingerprints except for this perceived notion of what it may be able to tell us at some point in the future about people. This bill isn't about what it might tell us about criminals and their genetic make-up. This bill is about identifying criminals.

There have been a lot of vague references, I think, to intrusiveness in reference to the Supreme Court decisions about how DNA sample-taking is so much more intrusive than fingerprints. I've actually read some of the cases that have been referred to, and I can't for the life of me figure out or agree with that.

Consider what fingerprinting is. I understand that next week you're actually going to have some demonstrations about these different types of methods. Fingerprinting is a cumbersome process. You put your fingers in black ink, you put it on paper, and you have to wash it all off. Breath samples—if you've ever had to give a sample or been caught in a RIDE program or have done those new things they have outside of some restaurants and bars, you'll know how much of a pain in the butt giving a breath sample can be.

The Chair: What exactly is your experience with this, Mr. Sullivan?

Mr. Steve Sullivan: I was afraid someone would ask that. Strictly outside the bars—

The Chair: I see, I see. We'll write that down.

Mr. Steve Sullivan: If you'd like my DNA, I will offer it for the data bank, Madam Chair.

When you consider what DNA sample-taking is, it's a prick of a finger, it's a pull of a hair, it's a Q-tip inside the mouth. I don't see how that's intrusive. I don't see how that's invasive. I understand there are concerns about privacy, but let's get down to the real issue. This is not much more than the taking of a fingerprint.

If we're concerned about what this kind of information will be able to tell us about people, the genetic make-up, the possible linking of chromosomes between criminals, then we should take precautions to make sure that the information is not abused. I think this bill does that. In fact, it goes so far as to make it a criminal offence to misuse the information. I don't know how much further you can go, except to say we're not going to use this evidence at all. And I don't think we want to do that, Madam Chair.

I've had the pleasure of sitting through many of the witnesses you've heard before this committee, and I have found all of their testimony informative and fascinating. We've heard a lot about the Supreme Court. When I hear about cases like that, I always find it interesting to actually read them. One of them has been the Stillman case.

You might be interested to know a little bit on the facts behind the Stillman case, for those not familiar with it. It involved the murder of a 14-year-old girl. The police identified a 17-year-old boy as a suspect. They took him in for questioning and his lawyer advised them that he would not give a statement and he would not give a sample for DNA testing. The police actually waited until the lawyer left and threatened the young boy until he gave them a sample of his hair. They took a sample of his pubic hair and they had a dentist come in and do dental impressions.

You should understand the context in which the Supreme Court made the references to DNA testing. It was in a context where there was no legislation allowing police to go to get search warrants at that time. It was before Bill C-104. The police at the time tried to justify their actions using their common-law power of search incidental to arrest.

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I'm not going to pretend that I'm a constitutional expert or that I have any more knowledge than the layperson of the Supreme Court, and in all fairness they did make some pretty strong remarks about DNA evidence. They talked about state interference with a person's bodily integrity. They said it's highly intrusive and it violates the sanctity of the body. They talked about how Canadians think of their bodies as the outward manifestation of themselves; it is considered to be uniquely important and uniquely theirs.

So the court did make it clear that they took DNA sample testing very seriously. But the remarks were made in the context that there was no legislation to allow for it. They said the taking of hair and teeth samples was conducted without statutory authority. They referred to the Legere case:

...the forcible taking of parts of a person, in the absence of legislation authorizing such acts, is an infringement of the right to security of the person...

...any interference with or intrusion upon the human body can only be undertaken in accordance with principles of fundamental justice. Generally that will require valid statutory authority...

If you amend this bill as we have recommended, you will be giving the police that statutory authority. The court made their decision in the atmosphere that there was no authority to do so. In this bill, if you create that authority, I think it will satisfy the Supreme Court's concerns about the intrusive nature of DNA testing.

We've also heard a lot about self-incrimination and how DNA samples could be perceived as violating the sections of the charter that refer to self-incrimination. But they're no different from fingerprints in that respect. They're no different from giving breath samples, as I mentioned. Don't forget, when talking about intrusiveness, the court refers to customs officers and how they can do body and cavity searches when they suspect drug involvement in situations. Those are all important things to consider when we talk about intrusiveness and self-incrimination. We already have those things. This is just another method of getting information.

There was also a reference to a Supreme Court decision in the Borden case, Josh Borden. That case involved the sexual assault of a 69-year-old woman. She wasn't able to identify her attacker and therefore there was no arrest. A short time after, there was a second sexual assault on a woman. She was able to identify Josh Borden. The two crimes weren't connected—they were very different—but the police thought perhaps he might have been involved in the attack of the elderly woman. They brought him in on the second sexual assault and asked him if they could have a DNA sample for investigations—and they used the plural—that they were doing. He gave them a sample, honestly believing it was just for the second sexual assault charge. They used it for the first and they got a match on the first.

The Supreme Court threw that out, because they said he didn't give informed consent. But with this DNA data bank, this is how the case could have gone, and I think would have gone. They arrest Josh Borden for the second sexual assault. If you amend the bill as we've suggested, they take his DNA at arrest, they run it through the data bank, and they get a match for the first sexual assault. He would be charged and convicted for both.

If you wait until the time of conviction, as this bill proposes to do, he would be charged with sexual assault, he probably would get out on bail, and knowing his DNA would have gone into the data bank, he probably would skip town. In this country, over 60,000 people a year skip bail. In this country, we don't often return people to the province that issued the warrant, unless they're very serious crimes. Clifford Olson was charged with a sexual assault offence on the east coast, went back to B.C. on bail, and was never returned because it was simply too expensive.

The point is that despite what the Privacy Commissioner says, this is a real problem. There's a window of opportunity there. If you don't catch these people when you have them the first time, you might miss them, and we'll never know who they are and what they've done. It's a very important point.

If you change only one thing in this bill, we suggest it be the timing when you take the samples. But as it stands now, Josh Borden is back on the streets. And even if he was in jail, I think he has only one sexual assault conviction, so he wouldn't be in the data bank anyway. Which raises our second concern about the retrospective aspects of this bill.

It's not inconceivable for us to imagine that there are individuals currently serving time for murder and manslaughter who are responsible for other offences. Inspector Gary Bass testified that there are over 600 cases in British Columbia alone. The London police force here in Ontario has set up a separate unit to investigate unsolved murders.

The point is it's not inconceivable to think, for example, that Clifford Olson is responsible for other offences, but under this bill you can't take his sample. Authorities are so sure he's responsible that Corrections has actually allowed him to make videotapes in the hope that he will give more information. The RCMP has taken him from his cell on different occasions and travelled to different provinces, hoping he will give them information about unsolved crimes.

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The point is if everyone believes so much that Clifford Olson—and he's just one example—is responsible for other crimes, your bill doesn't allow his DNA to be put in this data bank. That doesn't make much sense. I've identified, just off the top of my head, 15 or 16 other cases like that.

In fact one of the parole board reports you're going to look at is that of Raymond Russell. He murdered a woman in 1981 and was on parole in 1996 when he murdered another woman. His DNA won't be in this bank. It doesn't include murder. The bank only allows the authorities to go back and take samples from those who are declared dangerous offenders or those who have been convicted of more than one sexual offence.

Clifford Olson was never convicted of a sexual offence. Raymond Russell was never convicted of more than one sexual offence. The point is you're missing a whole bunch of people whose DNA could help solve a number of unsolved crimes.

If it's a question of expense, if you're worried it will be much more expensive, I might suggest to the committee and to the government that you look at the funding you give to the National Action Committee on the Status of Women and perhaps put that money to better use to help solve unsolved crimes. I don't know if you were here for their testimony, Madam, but frankly I think it was an affront to the women they claim to represent and to all Canadians.

I want to close by saying let's not forget what this issue boils down to. The only people who have anything to worry about by a DNA data bank are those whose DNA will be in the convicted sex offender index or the crime scene index. The privacy commissioner made reference to the fact that Canadians don't like to be prodded and poked and have their hair pulled, and I agree 100%. But the reality is Canadians don't like to be sexually assaulted and murdered either. If you were to ask them which is more of a concern to them, I guarantee that all of them would come down on the side of safety.

If you explain to them how many unsolved sexual assaults and how many unsolved murders we have in this country, Canadians would say unconditionally, use this DNA data bank to its fullest potential. And you are here to represent their views as well. I think if you consider what your constituents would say, you will certainly come down on the side of safety.

I'll end there, Madam Chair, and I look forward to the questions when my colleagues are done.

The Chair: Thank you.

Ms. Hatfield and Ms. Segal.

Ms. Erin Hatfield (Research Director, Victims of Violence): I'm reading a statement that was prepared by Gary Rosenfeldt.

The Chair: Sure.

Ms. Erin Hatfield: Good morning, Madam Chair and members of the committee.

Victims of Violence is a national organization dedicated to providing support and assistance to victims of violent crime, a program of victims helping victims. Many of our members are parents, friends, and family members of murder victims.

Murder is the most heinous of all crimes. It has an impact on the whole family, leaving many family members of the victims suffering a lifetime of pain. Not only do these people have to deal with the loss of a loved one; they have to deal with the manner in which the loved one has died, in many cases this being the most inhumane manner in which a person can suffer.

If an offender is apprehended, family members of the victims feel an obligation to assist in whatever way possible to see to it that justice is done. Many family members of murder victims attend court to present their victim impact statements, attempting to tell the court about their loved one and the impact the loss has had on their family. No words can adequately describe the loss or pain the family goes through, but they do this in an attempt to feel part of the process that will bring justice for their loved one.

In murder cases where an offender is not apprehended, the pain and suffering of victims' family members is intensified, knowing that there has been no justice and that the person responsible might still be free to cause pain and suffering to others. They follow every murder case closely, wondering if the same person is responsible for the murder of their loved one. Many of these people spend a lifetime searching and wondering about the circumstances surrounding the death of their loved one.

This committee has already heard figures on the numbers of unsolved homicides in Canada, and we will not repeat these figures, but we do wish to emphasize that with every single unsolved homicide in Canada, there is also a family that has been shattered and destroyed—parents, siblings, grandparents, aunts, uncles, and cousins. These are all individuals who have been affected by the senseless murder of their loved one. There are literally thousands upon thousands of Canadians from coast to coast whose lives have been affected by murder and who wait anxiously from day to day for there to be some resolution in their case.

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The use of DNA in the possible establishment of a DNA data bank in Canada has offered new hope to these families throughout Canada. They see it as a means of possibly bringing an offender to justice and a resolution in the case of their loved one. It will not bring their loved one back, but the person responsible may provide answers to questions that have haunted them on a daily basis for a lifetime.

Victims of Violence would strongly support a DNA data bank where DNA samples are taken at the time of arrest, and if there is a conviction, the police would be allowed to maintain these samples in exactly the same manner as they do with fingerprints today.

There will be arguments about the cost of such a data bank. We would suggest that the real costs of violent crime today are with the victims of these crimes and their families. No amount of money spent can bring their loved one back, but if it can help to resolve their case and help to relieve some of their pain and suffering, it is money well spent.

There are also arguments about the rights of the accused: that they should not be forcing a person accused of a crime to submit to having samples taken for DNA purposes. This argument is ludicrous, since DNA samples will also exonerate those wrongly accused of a crime. If a person is innocent, they would welcome samples being taken to prove their innocence beyond any doubt.

A data bank requires data, and we would suggest the best place to start would be with those already convicted of crimes and who are serving time in our federal institutions.

It is our understanding that the proposed legislation would not allow DNA samples to be taken from Clifford Olson, convicted of murdering 11 innocent children in 1981. Because Olson is currently incarcerated, do we forget what he was capable of in the past? Do we assume that he will never escape from prison?

Prior to the murders of 1981, he spent a lifetime in and out of prison, with 94 convictions and seven escapes. At his section 745 hearing in British Columbia last year, it was emphasized by all the experts that he would be more likely to commit murders today than if he had been released at the time he was incarcerated 16 years ago. In other words, he has been deemed more dangerous in 1998 than he was in 1981.

With this fact in mind, it is questionable why this legislation would not allow his DNA to be taken should he be released. Families of the victims of many unsolved homicides where he is suspected of being the killer might have some answers in their case, should this DNA be allowed to be taken. Are his rights more important than the rights of those families to have answers as to who is responsible for the murders of their loved ones?

For the last number of decades the Canadian justice system has focused on the rehabilitation of the offender. There has been little attention or regard paid to the rights of victims or the right of society to be protected from criminals.

We have seen a tremendous change in the past few years for crime victims. When they make their recommendation on this DNA bill, we ask this committee to consider the rights of victims and society's right to be protected from criminals.

Thank you, and I look forward to your questions.

The Chair: Thanks.

Ms. de Villiers.

Mrs. Priscilla de Villiers (President, Canadians Against Violence Everywhere Advocating its Termination (CAVEAT)): Good morning, Madam Chair, ladies and gentlemen.

Thank you for allowing me to appear before you in support of the victims resource centre. As victims' rights organizations, we share similar points of view, and I'm here to offer our particular perspective as victims of violence in support of the views expressed by the victims resource centre.

“From the death of one, we may learn to help lengthen the lives of many.” That is the coroner's motto. I sat for nearly six months in a courtroom and gazed at that motto during the inquest into the death of the man who'd killed my daughter and Karen Marquis, and who'd attacked at least eight other women. It is in that spirit that I appear here before you.

Once again I appear before you to urge you to learn the lessons of other tragedies so that they may never again be repeated. My daughter Nina was murdered on August 9, 1991, by Jonathon Yeo, a sexual predator who had attacked eight women, subsequently murdered Karen Marquis, and then attempted to abduct another young woman before committing suicide during a police chase.

Jonathon Yeo was identified by one fingerprint left on the window of Karen Marquis' home. He had previously been charged with having a starter's pistol and had been fingerprinted at that time. If that fingerprint had not been stored in the CPIC system, one can only guess how many more young women he would have attacked. Had a DNA sample been obtained at an earlier arrest, he would have been identified as a serial offender after the attack on the jogger, Miss S., and Nina and Karen and even Yeo himself would still be alive today.

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I might add that it was only by creating the DNA of a female child of my husband and myself that Yeo was finally identified, after one full year, as my daughter's killer.

Victims of crime and families of victims of crime as well as the community at large are deeply offended by the continual agonizing in some quarters that the taking of a saliva sample or the plucking of a hair represents an unwarranted intrusion on one's personal privacy as guaranteed by the Charter of Rights and Freedoms. We're fortunate enough to have the ability in this country to establish a data bank that allows not only for the latest technology but also leaves room for future advances in this rapidly evolving science. Consider how different the lives of both Guy Morin and David Milgaard would have been had such an effective data bank been in existence, which would have enabled us to prove both innocence and guilt quickly and accurately.

CAVEAT has long advocated the establishment of a DNA data bank. SafetyNet '94 and SafetyNet '95, two multi-disciplinary national conferences organized by CAVEAT, made the following recommendations about DNA samples:

It is recommended that the Identification of Criminals Act be amended in Section 2(b) and Section 2(c) to provide for the obtaining and seizing of DNA samples from a person charged with the offences as set out in the Identification of Criminals Act.

And recommendation 53, entitled “The Protection of the Public”:

Protection of the public from a high risk offender must be paramount. Offenders' rights and freedoms must not supersede the safety, rights and freedoms of victims, neighbourhoods, and the general public.

It is recommended that a national data bank be established which is compulsory for violent offenders on arrest.

Those two recommendations came out of two entirely different working groups at which CAVEAT had but one voice and which were attended by many of the leading figures both in crime prevention and in justice in this country, including victims. So I would suggest there's been a lot of quite coherent thinking on the subject for quite some time now.

Privacy concerns are leery of the state becoming keeper of the genetic records of certain segments of its citizens. There appear to be concerns about the potential misuse of the genetic information and a fear of the potential danger in the technology itself, which could feasibly be used for other purposes, such as genetic criminal profiling. To quote Mr. Steve Sullivan:

The privacy concerns appear to be less about using the technology in the criminal justice system than about the possible use of information for purposes other than for simple identification.

Looking at the broader picture, we regard the taking of DNA samples as a natural extension, as our technology improves, of fingerprinting and photographing a suspect. DNA is an advanced form of fingerprinting. Using that analogy, DNA samples should be taken on charge in an indictable offence. It should be a part of the booking process so that those we most want to apprehend do not slip through the cracks.

We photograph, fingerprint, and sometimes weigh people at the time of booking. The Supreme Court of Canada has ruled that the principle of taking and cross-checking fingerprints is constitutionally defensible. What compelling argument can possibly be made that taking DNA samples is an intrusive procedure? It seems that the only argument that is relevant is that the DNA contains more about the offender than those other techniques, in that it contains complex genetic information. Consequently, we must ensure that the guardian of the system uses this information exclusively for the purpose for which it was intended.

Appropriate safeguards must be included in the legislation. At present, we have blood banks, tissue banks, semen banks, among others. HIV tests cannot be performed without consent, but this does not mean that blood samples cannot be taken. Obviously, mechanisms that protect confidential personal information do exist.

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In a majority decision the Supreme Court of Canada on March 20, 1997, expressed outrage when a New Brunswick man convicted in a gruesome sex slaying of a 14-year-old girl was forced by the RCMP investigators to pull his own pubic hair and make a dental impression.

Since then Parliament has passed a new law that specifically allows police to obtain bodily samples such as blood or hair for the purposes of DNA testing for certain crimes.

The court commented that the Charter of Rights and Freedoms, which guarantees fundamental rights to all Canadians, “cannot be simply suspended when the police are dealing with those suspected of committing serious crimes.” We agree that the Charter of Rights and Freedoms must not be suspended. However, there is a concern in the community that the rights of the individual offender must not outweigh the public's right to protection from violent offenders. It is incumbent upon you, every one of you, to ensure that the legislation being proposed addresses this problem.

In a time of limited resources, financial concerns are understandable. In a previous consultation the then Solicitor General estimated that $5.8 million would be needed to pay for the biology portion of a planned new central forensic laboratory, $1.2 million to get the program running, and $2.2 million for annual operating costs. This should be an estimated total of $9.2 million. However, this must also be seen as minimal, considering that approximately $11 billion is spent on law enforcement in Canada each year.

To put this cost in perspective, one must remember that in the Bernardo case the estimated cost of the investigation alone—just the investigation—was $10 million. We've paid for our DNA data bank for the year. In fact a data bank can be viewed as an effective cost-saving initiative. It would result in more efficient and faster police investigations.

In violent crimes a good portion of investigative resources is spent identifying individuals, often through records of convictions for similar offences. Only after eliminating every other possible suspect can a warrant be obtained. A data bank would target the disproportionately small number of offenders who are responsible for a disproportionately large number of crimes. In addition, where innocence is ascertained at the outset, huge unnecessary court costs and the tragedy of wrongful conviction are avoided.

We are now speaking to some of the recommendations we endorse from the victims resource centre. The first is that section 487.051 be amended to allow for the taking of samples upon arrest. This should include the power to seize biological samples from suspects as well as those charged and arrested for serious offences. In addition, there should be clear rules for the guidance of police conduct on the seizure of these samples. I'm quoting that from an RCMP gazette in 1993, so obviously this has been discussed for a long time.

Given the bail provisions, the Askov decision, pardons, and the growing use of alternative dispute resolution and diversion programs, which are by no means restricted to minor offences, there's a real danger that those who are diverted out of the system will not be included in the data bank. Indeed, someone accused of minor assault might have committed many more serious offences. And all of you who see the charge sheets of very violent offenders, particularly dangerous offenders, know that liberally sprinkled among their more serious crimes are a whole rash of smaller offences. Surely this should not be necessarily excluded.

The second is that subsection 487.051(2), a line for exemptions from orders to provide samples, be removed. For any data bank to be successful it must be comprehensive and completely inclusive; otherwise, we're wasting our time. I've heard this endlessly, in courtrooms and in inquests and in scientific laboratories across this country. As a layman, I can tell you it's engraved in my heart. It has to be inclusive or we're wasting our time and money.

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It is in the best interests of the protection of society that this identification technology be used to its fullest potential. We have seen to our cost in other legislation, such as the previous firearms legislation, how any loopholes or exemptions water down the intent and the effectiveness of that legislation. It is to this end that we call for a retrospective data bank.

There is presently in prison a massive pool of convicted violent offenders and sex offenders who wouldn't be recaptured by this legislation. Steve has talked about a number of them. We know that it's the nature of sex offenders to recidivate. To lose this pool of biological information through exemptions will seriously jeopardize the safety of many victims, particularly women and children.

I quote from Mr. Justice Archie Campbell's report on the Bernardo investigation:

It was known that serial predators don't stop unless they are dead or in jail. As one observer put it: “We all thought, where did he go? We knew people just didn't stop. And it was obvious that he was likely to kill.” One observer said: “Anyone could look at what he was doing and recognize he was going to kill someone”.

I'm continuing to quote from the report:

The CFS test on Bernardo's DNA sample on February 1, 1993 led to his arrest and prevented him from raping or killing again.

I understand he was not even charged. In this case, he provided the sample.

I'm still quoting from the report:

The tragic converse of this fact is that Bernardo, during the 25 1/2 months his DNA was waiting to be tested, raped four young women and raped, tortured and murdered two others. In hindsight, it is clear that these rapes and murders could have been prevented if Bernardo's sample had been tested by the CFS within 30 or even 90 days of the December 13, 1990 serology test.

It breaks my heart to read that, because I know some of the rape victims, and I certainly know the families of the murdered girls. I know every one of the girls who were attacked, and I also obviously know of the two murdered girls. If we add that up, it's at least eight rapes and four murders that might have been prevented in one small area, in approximately four years of time, had a data bank like this been part of the regular routine and had there been a large genetic pool and had testing been something that was recognized as an essential investigative tool. I do believe we cannot allow this to happen again.

Recommendation 3: Expand section 487.055 to include those convicted of offences under the primary designated list.

Recommendation 4: That subsection 487.055(4) be amended to allow for simple detention of a parolee for the purpose of taking a sample.

Recommendation 5: That paragraph 487.053(a) be repealed. We must remove the prosecutor's discretionary power in forgoing a DNA profile. Steve discusses this at great length in his paper. It's hard to imagine what circumstances, if any, would mean that this profile should be discretionary. And I have to say that looking at all the discretionary powers that are given to the crowns in our courts, I have seen that they are extremely randomly applied. We cannot allow that. It has to be inclusive. A comprehensive data bank should not depend on discretionary retention of DNA samples.

An additional recommendation from CAVEAT alone: It is essential from a scientific point of view that samples be kept in addition to the DNA profile. Technology in the field of DNA is changing at such a rapid rate that in ten years' time the two current methods of taking DNA might well be obsolete. It is imperative that we keep DNA samples, plus a sample of blood as well, which will allow us to convert to any new language of future data banks.

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In two jurisdictions, one in the U.S. and one in Europe, DNA had to be destroyed. They lost their whole bank, as no blood samples had been kept, rendering their data bank obsolete because the type of testing they'd used did not translate into the new technology.

A British version of the data bank set up in 1995 provided information on 100 cases in its first six months. Closer to home, Ontario's police forces under Operation Angel are investigating approximately 100 unsolved murders of southern Ontario women dating back 50 years. Advances in technology such as DNA testing make it possible to reach a resolution on so many unsolved tragedies and free up essential police resources.

I think for many people there's a question as to why this is important. Why is it important to clear up a murder of 50 years ago or 30 years or even five years ago? I understand that with serious crime, particularly homicides, the case is never closed. But I have to say that for the family, the friends, and the community, when there has been a homicide it is essential that we reach closure. It is essential to the confidence a community has in its justice system.

On the whole, our only contact with the justice system is through some crime that touches us quite closely, whether it's a neighbour, a friend, or somebody in the same city. And research has shown quite clearly in Europe—certainly I have a number of papers from Holland that show this very clearly—that where there is no apparent resolution of crime the charge rate and the conviction rate go down. So in order for there to be increased reporting and much more assured conviction, there has to be a discernible result, or the community just decides that they will not report crime. This is very clearly demonstrated. I have discussed this in this paper, but I can provide the material if you want to see it.

This is a very clearly understood fact, and indeed has led to the creation of very sophisticated victims services and departments within many of the European countries, who have seen quite clearly that by supporting victims and by resolving crimes they then increase public confidence and therefore the successful resolution of not only investigations but the court process results. So it's definitely a circle, and it is absolutely essential that each component is there.

There's little doubt that a comprehensive data bank is an essential tool of modern law enforcement. We have the opportunity to implement a DNA collection and storage system that will allow for the rapid development in testing and storing biological data. This has the potential to raise the conviction rate for many serious offences, which would buoy up the confidence of the community and the justice system, which, as we know, leads to increased willingness of the public to report crime, confident of the efficacy of the system.

We are supportive of the proposed legislation as a whole, as it presents a unique opportunity to develop a most comprehensive and advanced DNA collection and data storage system. We have the British model to learn from, among others. Lives and the quality of life of many vulnerable people can be saved from the predations of violent offenders.

Thank you.

The Chair: Thank you.

I'd just remind colleagues that this is the day I mix it up a little bit in terms of the order of questioning. So if you do have questions, let me know. Only one person has let me know so far.

I'll start with Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): I just have a short one for Ms. de Villiers.

As you already heard, we had the National Action Committee on the Status of Women here. They have suggested that we scrap Bill C-3, withdraw it completely. They're basing that on their concerns that there's a potential for revictimization of victims of sexual assaults through the banking of the DNA. I'm just wondering, Ms. de Villiers, as a representative of a large victims organization, have you considered that aspect of it, what their concerns are, that there is a possibility for revictimization?

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Mrs. Priscilla de Villiers: I was not present at the submission yesterday. Quite frankly, I'm at a loss to understand that. I am aware of other concerns they have. In my opinion, and as president of CAVEAT, in which we represent not only women and children, but men as well—we represent all Canadians—I don't understand it. I understand that there are concerns that have been expressed in the press that resourcing may go into this rather than into domestic violence.

I would like to say that my daughter was a victim of violence because she was a woman. I sat in a courtroom for six months and saw a complete picture as victim after victim after victim who were still alive stood on the stand and told their stories. I saw the total picture.

The idea that what happened to those young women and happened to my daughter and Karen Marquis should go unsolved—and I think I've tried to show you that it was pretty critical in these cases—because we have not invested in a very important investigative tool I find hard to accept.

The children I deal with, and particularly the parents of children I deal with who have been very, very violently sexually abused, very often only have genetic material to speak for them. It is extremely important. In additon, disabled people, particularly young women, are twice as likely to be attacked and raped and often murdered as women who are not disabled. I deal with them and their families quite often as well. And in many cases, where they are badly disabled, they too are not able to speak for themselves.

I have to go back to the coroner's motto and say that what we learn from these tragedies we have to try to apply so that we can prevent future tragedy.

There's no doubt in my mind that very often in a case of violence against women where an intimate partner may be a suspect, and the victims can no longer speak for themselves, either because they're dead or they're unconscious, there's a need for DNA sampling. I'm thinking of a couple of cases out in British Columbia of extremely violent assault where you had to prove. In fact this was a case of intimate femicide.

I'm at a loss; I'm quite honestly at a loss. I can't support that position. I have to put again on the record that I was not here yesterday to hear the arguments.

Mr. Chuck Cadman: Thank you.

The Chair: Ms. Bakopanos, do you have something to piggyback on that?

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Yes, I will piggyback on that. Thank you, Madam Chair.

Thank you very much for your testimony.

I wanted to piggyback because although I didn't agree with everything that NAC said in terms of the bill, I think they raised a valid concern, in the sense that they feel, rightly or wrongly, that there is a certain amount of systemic discrimination in the judicial system against women, and that once identification is no longer an issue, the onus will be on consent in the judicial system. We've had recent cases and we have a whole history of how the judges have in fact interpreted consent in terms of sexual assault and rape. That's why I think they do raise an issue that has to be taken into consideration. I don't know if you have any comments.

Mrs. Priscilla de Villiers: I think that's a very important point, and I think certainly the bulk of the people we deal with on a daily basis are obviously women, and this is an issue. However, I think this is an issue that must be addressed as an issue of consent. In other words, let's address that issue. That is a problem. I quite agree with you. Let's address that as an issue. I personally cannot take the issue of consent and put it into the issue of what amounts to a scientific investigative tool.

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Ms. Eleni Bakopanos: In terms of the resource centre, Mr. Sullivan, the fact that in 80% of the cases the woman knows who the assailant is, and according to NAC her word has very little value within the judicial system... And I'm saying according to NAC; I'm not going to say I agree 100%, but I think there's some validity to their argument. Do you have any comments?

Mr. Steve Sullivan: I support a lot of what NAC said about that issue: that the court often doesn't deal very well with the issue of consent, and we do put the onus on women. There are problems within the system, there's no doubt.

What I didn't agree with was trading off victims of strangers as if somehow they weren't as important. The problem they're concerned with is violence against women. That means women who know their attackers and women who don't. This tool is a separate issue. It will help identify and solve crimes. That's a good thing. That doesn't mean that we shouldn't be concerned about the consent issue. That is an ongoing problem. And we agree that there are problems with that, but I don't think you solve that problem by doing away with this bill.

Ms. Eleni Bakopanos: Thank you.

The Chair: Of course if someone's husband kills her and there's no witness, you may need DNA to get the conviction.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you. Maybe I'll piggyback a little bit on what Madam Bakopanos said and we'll have a tower here.

One of the things NAC said as well, which I think bears consideration, is that there is also an allegation of systemic prejudice in the judicial system against people of colour, against people who are poor, not just against women.

That being said, I think that we talk about victims, and I thank you for your presentation, but I could also tell you stories of victims who have been brought before the courts and whose civil rights have been violated. Their lives have been changed dramatically. They too are tragic victims of a system. I say that because I think we have to look at the civil libertarian point of view of some of this legislation. So I invite some education for me in these questions.

First, Mrs. de Villiers, in advocating that the samples be taken at the time of arrest, you said that there was an argument for that because although we have to respect the Charter of Rights, the rights of the individual offender—and I think I'm quoting you correctly here—do not outweigh the rights of the general public. But you would agree with me that at the time of arrest there is no offender; there is a suspect.

Mrs. Priscilla de Villiers: Absolutely.

Mr. Peter Mancini: Should we then take that statement and say that the rights of the individual suspect do not outweigh the rights of the general public? Because we don't have an offender at that point; we have someone for whom we have a presumption of innocence.

Mrs. Priscilla de Villiers: Absolutely. But I think the question is that we routinely fingerprint and photograph, and there is certainly no conviction at that point. We rely on the reasonable and probable grounds of arrest.

I think we have a very aggressive bar association who are there, and we also have a system where we don't have a public defender, but the accused has his own defence. I feel that those safeguards are in place, in fact often to the detriment...I shouldn't say it's to the detriment, but often maybe it is to the detriment of possibly a successful conviction.

So I quite agree that this is a problem, but I feel that we have already established that this is permissible under our Identification of Criminals Act. And if in fact there is wrongful taking of samples, as we saw in the case in New Brunswick, then the Supreme Court will come down as hard as it did. That's why I quoted that. In other words, they felt that this was wrong, that it was intrusive, that it went against fundamental rights. Therefore, despite the severity of the case, this person was allowed a new trial, I think.

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I quite agree that's a very important thing. I have thought about this very carefully. Because I believe passionately in the need for a balance and the need for a preventive and successful sort of conclusion, that does not outweigh the rights of one against the other. I believe that we have in fact established over many years that we can take those investigative samples, whether it's fingerprinting, whether it's weight, whether it's photographing, or whatever.

I don't know if that answers your question.

Mr. Peter Mancini: It does. It gives me more food for thought.

I'm going to move on in the same vein to Mr. Sullivan. In discussing the taking of samples from those already in prison when there isn't an arrest and from those already convicted... And again I ask this question because I see a potential challenge here. The presumption of innocence in our system is one of the cornerstones of the criminal justice system. So what we're talking about doing is taking a sample from someone who is perhaps admittedly a convicted offender, but they're not charged at that point with any offence. Do you see a problem with that, with the presumption of innocence and at the same time saying that although we haven't charged you with an offence, although you're not under arrest, we still have the power as the state to take a sample because we want to, because you've been convicted?

Mr. Steve Sullivan: There's definitely no doubt in my mind that there will be a charter challenge.

Mr. Peter Mancini: We agree on that.

Mr. Steve Sullivan: We should remember that people in prison can be required at any time to give a urine sample if they're suspected of drugs, and they have the presumption of innocence to do that. They can be body-searched, cavity searches, those types of things. I think it's reasonable.

The bill does allow for certain types of offenders to be tested or have their samples taken. We suggest broadening it. I think it's reasonable. If there is a match on those samples, for example, there will be charges laid, and that person will have the presumption of innocence of that charge. It isn't automatic that once you have a match someone is guilty; there is still that presumption of innocence. I think it's a reasonable balance.

Mr. Peter Mancini: Okay.

Mrs. Priscilla de Villiers: I would just add that we had quite a sensational case recently of sexual assault charges against a very prominent person in the city. He has spoken out extremely bitterly, because for three years his name has appeared in the press on a regular basis together with the charges as the case has gone forward. He said that regardless of the outcome, in everybody's mind it's completely imprinted that this is what he did.

I believe that if samples are taken and obviously in certain cases where genetic sampling is appropriate it's quite simple to show that this is absolutely false and this is not going to lead anywhere, charges aren't even laid. The point is that this is the whole investigation. So quite honestly, whether they're looking into your past, asking neighbours about your friends, etc., in order to lay charges, or whether they're doing an immediate check saying yes, no, three bags full, I fail to see that this is anything but very helpful, so that charges will not be wrongfully laid and put you through that anguish and that cost and everything else.

Mr. Peter Mancini: Okay.

I have another question, if I might, for Mr. Sullivan. In terms of taking samples at the time of arrest, one of the arguments you have advanced is if we're going to wait until the time of conviction and the offender knows that there may be a DNA match, you talked about him escaping, that he won't stay in town; he'll get bail and go. Surely the primary ground for a judge to determine whether to grant bail will be whether that accused will be there, whether he'll escape custody and leave town. So surely the very argument you advanced to us today would be advanced to the judge to say don't grant bail because we're going to be taking a DNA sample, the other evidence is compelling, and we're afraid he's going to escape. That's what the crown would advance, and the judge would likely not grant. Surely that would be the place for the advancement of that argument—it would be at the bail hearing, wouldn't it?

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Mr. Steve Sullivan: I would assume that if the legislation stays the way it is, that would in fact be an argument that crowns will use.

I think the point, though, is if you have someone who you've charged, like Josh Borden, for example—the second offence wasn't violent; there was no intercourse. This is not to diminish what happened to that lady, but it was his first offence, the first one that I'm aware of.

You talked about the right to be presumed innocent. Denying bail is a pretty serious thing. And I don't know that judges would simply deny bail because they think that someone might be involved in more sexual assaults that we have no idea about.

Mr. Peter Mancini: No, but if they believe that the accused will leave the area, that's the primary ground to deny bail. And if the argument you've advanced that they'll likely leave because the evidence will be so compelling to at least substantiate the laying of charges or the finding of guilt... If the evidence is going to be that compelling, then there is a compelling argument for the accused to leave. And we don't know, it's hypothetical, but I would suggest that bail could be denied at that point.

Mr. Steve Sullivan: Then I guess you would probably see that no one will be getting bail and they'd be kept in prison until they're convicted and you get the DNA samples anyway. Assuming this would happen—I don't think it would, but if that did happen, you would be denying bail to people who would not be in the bank and who would have no excuse to leave.

Mr. Peter Mancini: Thank you.

The Chair: Mr. Mancini, we've got other guests here, so I just want to make sure I get Mr. MacKay in.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Madam Chair.

I want to thank the entire panel. Your comments and input are extremely valuable. As a new member of this committee, I'm increasingly thankful that we have a forum where we can hear from individuals affected by the legislation that passes through the House.

I'll try to keep my questions concise to you. I agree with and I take to heart a great deal of what you said, as do all members of the committee. I find it particularly important that you are making these types of recommendations for our consideration.

The resource aspect of this, which is perhaps the least emotional part of a very emotional issue, is one that I think is important also. You talked about the cost of the one investigation involving Bernardo being approximately $10 million, which would cover the cost of a year's running of a DNA bank. I guess I'd just like your opinion in terms of government priorities with respect to going ahead with this plan as opposed to the firearms legislation, which is going to cost about $500 million, estimated, and in terms of your perception of the priorities here.

Mrs. Priscilla de Villiers: I don't think we have priorities. I don't think this is either/or at all. I think on the one hand we have a very important scientific investigative tool that has been proven very successful in many countries. As I understand, they've had it for fourteen years in many of the states, six years in Britain. We're leaders in the world of technology, particularly computer technology, so there's no reason why we shouldn't lead the field in this and in fact create such a sophisticated system that we can sell it and make the money back.

So this is one thing, and that is very important. It's an investigative diagnostic tool. Firearms legislation is an extremely important imperative preventative tool. The two are apples and oranges. If we use the medical model, it's like saying do we chlorinate the water or do we have emergency operating rooms.

The fact is that the entire world—and I've been involved in this both locally and internationally—recognizes that violence is a number one health problem in the world. The World Health Organization has said that. I was at a meeting a week ago with the World Health Organization expert group on this. And firearms is one of the most important emerging parts of the prevention of violence.

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I don't think I should be discussing firearms legislation here; I'm on the record with this. But I feel that it's not an either/or situation.

I feel that the costs saved in medical costs, in loss of earnings, in loss of mental health, etc., when tragedy occurs is well documented. But we also have to deal with quality of life and we have to deal with preservation of life. And I can tell you that for most of you, I'm happy to say, when we come up here and talk about tragedies it's like listening to a novel or seeing a vague picture. However, for too many of us we see the actual faces, we hear the voices, we know the pain. And I believe that in a country like Canada it behoves us to bring in whatever legislation possible to improve the quality of life.

If I were appearing before a human resources panel I'd be talking about a different thing. But one is preventive, one is diagnostic, and I think both are extremely important.

Mr. Peter MacKay: Could I just ask one short question?

The Chair: All right.

Mr. Peter MacKay: Thank you, Madam Chair.

We've heard from a number of groups that talk about the possibility of keeping DNA of victims separate from the DNA of offenders and crime scene DNA. I'd just be interested to hear your comments on that suggestion, or the need for that, where you represent victims.

Mrs. Priscilla de Villiers: I didn't even know that they were going to include victims' DNA in a data bank.

Mr. Steve Sullivan: I assume it'll be in the crime scene—

Mr. Peter MacKay: It'll be in the crime scene collection.

Mrs. Priscilla de Villiers: At the crime scene. I'm afraid I don't know. I can't answer that. I don't know.

Mr. Steve Sullivan: I don't know that we have any particular concerns. Obviously there's a concern about the privacy of the victims' DNA being in the crime scene, but I don't know that I'm technologically advanced enough to go into the details of that, if it's identified or...

Mr. Peter MacKay: I just wonder if anyone in your discussions with the people you represent had expressed that fear to you, that their DNA would be stored as well, as part of the collection process.

Mr. Steve Sullivan: Not to me.

Mrs. Priscilla de Villiers: The only people who have discussed their concerns about DNA are people who, like most of Canadians—and I have to put myself in that—are really ignorant of what DNA is about. DNA profiling, as far as I can gather from having sat in on umpteen trials and inquests and hung out with far too many forensic people—my poor head is bursting at the seams—is that we have this frightful sort of picture that is I think basically based in our youth and is not really up to date with modern technology. What they do with DNA, as far as I can make out, is that they target one specific part of the sample to get one type of the genetic typing. In other words, there's a huge amount that is not touched in this forensic testing.

So quite honestly, as I understand it—and I've seen a lot of the codes and things on the computers—you have this sort of meaningless code that is on the computer, which really is only directed to one thing and one thing only, and that is profiling of identification. So quite honestly, I think that most people, with the arrogance of ignorance, want to throw the whole thing out because they really just don't understand it.

The Chair: There's a lot of that around here.

Mrs. Priscilla de Villiers: I wasn't looking at anybody.

The Chair: We know this, and we're presumed innocent. We know that. But I don't know if that presumption applies here. That's all I'm saying.

Mr. Ramsay.

Mr. Jack Ramsay (Crowfoot, Ref.): Talking about presumption of innocence—and I don't want to use words that express a harsher opinion than what I hold—I think that the presumption of innocence argument is moot, in that the taking of a DNA sample, just like the taking of a fingerprint, cannot lead to a miscarriage of justice. The most it can do is identify someone who has committed a crime or clear that individual of suspected crimes where DNA evidence has been left at the scene.

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If the taking of a DNA sample at the time of arrest or charge destroyed the presumption of innocence, then of course fingerprinting would have already done that. Inasmuch as fingerprinting hasn't done that, and inasmuch as the presumption of innocence extends well beyond the charge, right to the point of conviction... In fact it continues on to all levels of appeal. So the presumption of innocence has always protected, and the right to express that presumption is always there.

I don't want to get onto Bill C-68, because everyone knows where I and my colleagues stand on this, but we used to hear that if Bill C-68 will save but one life... That was the argument—and it's a good argument. When we apply it here, it is far more profound. We've heard that from testimony today. We've heard it from testimony from others that appeared before the committee on this bill, particularly when we realize that people like Clifford Olson could have been stopped. Others could have been stopped, lives could have been saved—we heard that today—had the police had a greater authority to use and develop this technology.

We want to support this bill. I'm hoping that the government side will look at the amendments you've brought forward.

I'm pulled one way and the other on this argument of expanding it to include the DNA sampling at the time of arrest. If I understand what you're asking for, the police now have the authority to obtain a sample under Bill C-104, but under certain conditions. There must be a DNA sample at the scene. There must be reasonable and probable grounds to believe that this person was responsible for it. A warrant must be obtained and then a DNA sample can be obtained.

What I understand you're asking for when you want the DNA to be taken at the time of arrest or charge is for those individuals that don't fit into that category, but it's a serious offence and you want to be able to run it through the system.

There is no possibility of that leading to a violation of a person's innocence or leading to a miscarriage of justice. There is no threat of that. I wait for other arguments on this, because my mind is open on this. I am of the opinion that this would perhaps save lives, while at the same time not threaten the miscarriage of justice in any other area.

So I make those comments, and you might respond. Mr. Sullivan, you brought it up, perhaps you could respond.

Mr. Steve Sullivan: Just a brief response. I think the chiefs of police made it clear and Inspector Bass made it clear that even if they get a match on the DNA data bank, it's one piece of evidence. It helps to identify someone. They don't take that piece of paper to a judge and say “Here, your honour, now convict him”. They still have to investigate.

It's theoretically possible that you could have a murder of a woman who had consensual sexual intercourse with someone and they find a semen sample in her at the scene, but the person who had consensual sex didn't kill her. Yet his sample would be there. So police don't just simply take a DNA match and say “we have our guy”. They investigate, as they would any other crime.

So I don't think we should pretend that DNA is the end-all and be-all for this whole thing. It is one tool that police have. I think it will assist them to do their jobs. There's no doubt in my mind that it will save lives.

Mr. Jack Ramsay: I would just make one other point.

We're talking about the authority to take samples, and the blood sample to me is the most important, in terms of conclusivity, in terms of matching. Yet doctors in some hospitals, in some provinces, take blood samples from newborn children, babies, for certain purposes. By what authority? And are those samples kept? Do they have a data bank? I don't know, but they do take them. And Mrs. de Villiers mentioned that there are other banks that have been established.

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I think we may be making too much of this whole area of authority of the police to take samples in order to protect society. When the doctor takes a sample from that newborn baby, what is it for? It's to protect the baby, to see whether the baby is suffering from any diseases or whatever. It's for the benefit of that child, not for the detriment of that child. If the safeguards are there to ensure that information is not used in a way that takes advantage of that human being, then there should be no one saying the doctor shouldn't be taking samples at the time of the birth of the baby.

The more we hear about this, the more I'm convinced that the concerns that have been raised are legitimate and we should be examining them. But I'm moving towards the position that we may not be realistic in the burdens or the obstacles that we place in the way of the police using this as a tool to protect members of society.

That's all I have.

Mr. Steve Sullivan: Just briefly, Madam Chair, it seems to me that the concern is based on a perceived notion of what we may one day be able to tell from these samples. The police have told you quite clearly that they don't care about that information. Their job is to identify the guilty. That's what they do, and that's why they want this information.

Mr. Jack Ramsay: The coroner yesterday said it will not tell you anything else.

Mrs. Priscilla de Villiers: May I just add one thing? There have been cases—and I won't go into them in detail—where police have followed suspects around and picked up their cigarette butts and kleenex and this sort of thing and got the DNA sampling anyway. I think, quite honestly, that is first.

The other thing is that I did get the advice of two constitutional lawyers before I came and made a fool of myself. The consensus was that this falls under the fact that cross-matching of fingerprints has been declared defensible.

The Chair: I want to thank you very much for coming to see us and giving us the benefit of your advice.

We'll rise for a few minutes. I'm hoping that colleagues will remain, because we have guests for lunch.

The meeting is adjourned.