Standing Committee on Justice

Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness

Comité permanent de la justice, des droits de la personne, de la sécurité publique et de la protection civile

EVIDENCE number 11,
Témoignages du comité numéro 11

Thank you and thank you very much for coming before the committee. Just a little aside here, if you have a lack of resources, I think I know where you can find some that are really not being very well utilized at this point. I'm referring to the rather ineffective gun registry.

My question is one that would reflect what a lot of Canadians fee. I'm coming back to this whole issue of why the taking of saliva is more intrusive than the taking of bodily oil from your fingerprint. I am very familiar with the system that was implemented back in 1995 where the gathering of all kinds of information, financial history, sexual and marital history, mental history, all had to be provided to the government. It was put on a data base. It was available across Canada. That is not regarded as a serious invasion of someone's privacy, but the taking of a saliva sample is?

I just can't see how you can defend that one system which applies only to law-abiding firearms owners and this other system is potentially for someone who has committed a criminal act. It seems like you're turning yourself inside out to defend the privacy rights of individuals who have been charged or convicted but don't respect the rights of law-abiding people to be protected from an enhanced crime-fighting tool. That's really the concern that most Canadians are trying to raise through their elected representatives. In the Charter, isn't there a right to the security of person? Why isn't there a better balance of rights between criminals and their victims? Isn't this a matter of balance?

Mr. Stanley Cohen: The point that you raise about the distinction between fingerprints and DNA is one that has bedevilled the discussion since this legislation first came forward. On the one hand it does seem to be a simple comparison. On the surface it seems to be that way but when it has been examined, and I'll remind you of the discussion that we had in 1997/98 when the three opinions were solicited, independent opinions from three eminent jurists in this country, and each of them independently came to the conclusion that taking DNA at the time of charge would be a constitutional affront, but they were concerned--the cases that they were canvassing are still the cases that are leading the jurisprudence today--not so much about the aspect of physical intrusion. So when you speak about saliva versus oil on the finger, that's a valid observation.

The degree of offence to physical integrity, the cases say, is relatively modest and the Supreme Court of Canada said that, but the court has gone on to say, in the most recent statement as in the case of SAB, that the same cannot be said about concerns that arise with respect to informational privacy. The minister, in his opening remarks, did quote from the SAB case which said The informational aspect of privacy is also clearly engaged by the taking of bodily samples for the purposes of executing a DNA warrant...

There is undoubtedly the highest level of personal and private information contained in an individual's DNA.

So it's not so much that there's a physical intrusion and assault on physical integrity that's involved here, but it's a question of essentially taking the whole life story. This may not be fixed in time. It's something that has to evolve as we become more comfortable with technology and its effects.

Mr. Garry Breitkreuz: But don't you grasp the point I'm trying to make? There are potentially people out there who will be victims. Don't we need to balance their rights to be properly protected, the security of their person, against what you're trying to defend right now?

Mr. Stanley Cohen: I'm not trying to suggest that the need to protect society is not of superordinate importance. In fact, the courts have said that as much as anything else. They also have said that in doing a constitutional calculus, if you wish to put it that way, societal interests are part of the consideration. They're not put to the side. We're not simply estimating whether a right has been infringed, pure and simple. So it's not a matter of that, it's a matter of trying to strike the appropriate balance.

We must remember that there are DNA warrants in existence, which allow for, in individual cases, the obtaining of the DNA sample that you're concerned about. In any case where there is reasonable and probable grounds, there is the scheme itself, which takes these samples from everybody who has been convicted of primary and secondary designated offences, as expanded in this legislation. There is the retroactive tool, which has also been expanded in this legislation. So it's not a case of protection versus no protection.

Mr. Minister, I wonder if we could ask on behalf of the committee for the provision of the opinions that Mr. Cohen referred to.

Hon. Irwin Cotler: I just wanted to make reference to that. This debate actually arose as well in 1998, when our officials appeared at that time before Parliament. At that time, justice officials told the standing committee that the taking of bodily samples from a suspect constituted a search.

Now, while the federal government was confident in the constitutional position we took at the time, the Minister of Justice then, in order to resolve this issue and perhaps expedite the legislation through the House of Commons, sought legal opinions--this is what Mr. Cohen referred to--from former Justice Martin Taylor of the British Columbia Court of Appeal, from the former Chief Justice Charles Dubbin of the Ontario Court of Appeal, and from the former Chief Justice of the Quebec Court of Appeal, Claude Bisson.

What's interesting is that each of them concluded independently that the taking of a DNA sample at the time of the charge, like fingerprints, would not survive a Charter scrutiny.

Now, I am delighted to make these opinions available. They were made available to parliamentarians at the time. We are pleased to make these opinions available today, because I think you will find the exact questions, the conceptual issues that you asked about security and privacy, and the approach taken independently by the three chief justices refer to those issues on a more general level, and to the particularity with regard to their impact on matters of particular interest.

From the comments and the answers that you gave me, is there a chance that this can begin to evolve and to change, and that these opinions will change, and that maybe we should be starting to pursue this, because things in the last six years could have substantially changed?

Hon. Irwin Cotler: I think that's a good question. Let me try to answer this way.

I have no hesitation in certifying that the changes that we are proposing in this legislation before you are constitutional. I think moving to the fingerprint model, for the reasons that have been discussed, would be a considerable departure. I think in order to do that--I'm not precluding that option--I'm saying that I think we would need to include that in further consultation with the various stakeholders.

We may have an opportunity to do that at the upcoming federal-provincial-territorial conference of Attorneys General. I think we need to canvass the views of various stakeholders in this regard. I would think that the five-year review in 2005 is the proper forum to canvass the points that you have brought up in the context of the consultations that would be undertaken. Perhaps, then, we would have a more informed appreciation of how we can proceed. At the present time, I wouldn't be able to be in a position to certify it as to constitutionality.

The Chair: In the time being, if we could be provided with those opinions through the clerk.

Now Mr. Breitkreuz assures me he has one brief question he's going to put directly.

In 1995 the executive of the Canadian Police Association struck a backroom deal with the justice minister. They agreed to support the Liberal gun registry and in return the justice minister promised the government would introduce DNA legislation allowing them to take DNA samples at the same time that they're taking the fingerprints of accused criminals. The executive of the Canadian Police Association kept their side of the bargain. Why didn't the government keep theirs?

Hon. Irwin Cotler: My response to your question is I don't know of any backroom deal. I've come here today to put before you legislation to be considered by you on an urgent basis. I can't comment on any alleged backroom deal of which I have no knowledge.