Bill C-13, An Act to Amend the Criminal Code, the DNA Identification Act and the National Defence Act
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Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness
February 8, 2005
Opening statement by Jennifer Stoddart
Privacy Commissioner of Canada
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Thank you for inviting us to comment on Bill C-13, which amends the Criminal Code, the DNA Identification Act and the National Defence Act.
We are here today to express our deep concern about the implications of further expanding the scope of the DNA Data Bank. Simply put, there is, at the present time, no demonstrable evidence to show how collecting DNA samples for the proposed new offences will help us achieve a safer and more just society.
Let me begin by stating clearly that the Office of the Privacy Commissioner, like all citizens, is concerned about public safety and, particularly in protecting the most vulnerable members of society from the most heinous of crimes.
Reconciling the integrity of the justice system with law enforcement needs
As Canadians, we have chosen to live in a free and democratic society based on fundamental rights and freedoms of individuals. We have chosen to limit, within bounds of reasonableness, the extent to which the State can infringe those rights and freedoms in the name of law enforcement. Privacy has been recognized to be among these rights and freedoms, and it is my role to remind the Committee of its prime importance, particularly in a context involving DNA of individuals.
The information contained in a DNA sample poses a profound privacy threat to individuals and thus merits the strongest protection. In the 2003 Supreme Court of Canada decision of R. v. S.A.B concerning the DNA warrant provisions of the Criminal Code, then Justice of the Supreme Court, Madame Justice Arbour, recognizes this explicitly:
The informational aspect of privacy is also clearly engaged by the taking of bodily samples for the purposes of executing a DNA warrant. In fact, this is a central concern involved in the collection of DNA information by the state...There is undoubtedly the highest level of personal and private information contained in an individual's DNA.1
One may ask how this is any different than the current practice of fingerprinting? While a fingerprint can identify who a person is, DNA can tell you everything about them. Moreover, because of its assumed predictive value, DNA can be used to draw inferences about a person's genetic tendencies, yet such inferences are based only on probability that may or may never actualize.
However, we also clearly recognize the vital role that DNA can play in supporting and enabling Canada's criminal justice system. Modern DNA matching techniques can be effective in identifying persons who have committed violent and sexual offences, as well as exonerating the innocent who have been wrongly convicted.
We are not here to argue against the existence of the DNA Data Bank. In fact our Office has actively participated in the debate for some time and did not oppose the creation of the Data Bank in 1998. We continue to contribute to dialogue on the operations of the Data Bank through Assistant Commissioner Raymond D'Aoust's participation as a member of the DNA Data Bank Advisory Committee. There are clear controls and conditions in place for collecting DNA samples from those convicted of designated offences, and the processes for including DNA into the Data Bank and limiting its use are well-defined.
But the Supreme Court of Canada has clearly stated that effectiveness alone cannot provide sufficient justification for unfettered invasion of individual rights. In order for us to feel safer from crime, we must first and foremost have continuing confidence in the reputation and integrity of our criminal justice system which includes respect of individual rights.
As Mr. Justice Iacobucci wrote:
...we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that he or she actually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects not only the accused but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance...2
Fundamental shift in underlying criteria for inclusion into the DNA Data Bank
"The rationale for collecting DNA samples for the purpose of data banking is twofold: the serious nature of the offence and the likelihood that DNA samples would be found at the crime scene." This is how the Honourable Andy Scott, Solicitor General at the time, explained the rationale for creating the Data Bank when he appeared before this Committee on February 4, 1998.
The Supreme Court of Canada subsequently confirmed, in R. v. S.A.B., that the DNA Data Bank "applies only to designed offences (set out in s. 487.04), which consist primarily of violent and sexual offences that might involve the loss or exchange of bodily substances that could be used to identify the perpetrator through DNA analysis."3
We have seen a fundamental shift away from this rationale toward what appears to a growing national registry of convicted criminals. This is a marked move away from the underlying philosophy of the DNA Data Bank scheme as it was originally conceived and approved by Parliament. New offences were added with the adoption of then Bill C-36, the Anti-Terrorism Act, in 2001 and more offences are now being proposed in this Bill that do not appear to meet these criteria of violent and sexual offences involving the loss or exchange of bodily substances.
We urge Committee members to question this creeping expansion of the DNA Data Bank program and to insist that demonstrable justification and firm criteria be set out and met before including new offences.
The proposed expansion and reclassification of the DNA Data Bank offences
Although the matter of taking DNA samples from all individuals charged with a serious offence is not contemplated in the Bill, we are aware that there is support for such a measure. We would like to commend the Honourable Irwin Cotler, Minister of Justice, for the position he articulated before this Committee December 6, 2004, against expanding the databank to collect DNA from individuals at the time they are charged.
We believe that, in principle, the number of offences for which DNA samples can be taken and included in the Data Bank should be kept to a minimum, and that the inclusion of offences must be based on a clearly articulated and demonstrably justifiable rationale.
In our view, this Bill fails to make a compelling argument either for the inclusion of the new offences in the DNA Data Bank provisions or for the transfer of some offences from "secondary" to "primary" status.
Moving beyond the question of whether or not the proposed additions meet the original rationale, there is also an apparent lack of documented research demonstrating a clear correlation between the commission of some of the less serious offences that are being added and the subsequent commission of more serious and violent offences.
For example, while it may be true that many offenders who commit violent or sexual offences also commit offences such as break and enter, it is clearly not the case that everyone who commits a break and enter offence goes on to commit more violent offences. Nor have we been provided with any evidence about the likelihood that someone who commits a crime such as accessing child pornography is likely to go on to commit a sexual offence or any offence where there is a likelihood of DNA being found at the scene of the crime which can be used for matching purposes.
This is a very serious omission. I am surprised and deeply concerned at the seeming lack of scientific evidence which anyone can marshall to support these changes.
In closing, I want to be clear: we are concerned about the safety of our children and our neighbours. We are not insensitive to the victims of crime. We are not opposed to preventing crimes and punishing those who commit crimes.
Our concern is that we are moving away from the DNA scheme that was set out in the 1998 Act and approved by Parliament. We are moving away from a limited Data Bank that only contains DNA samples from those convicted of the most serious violent and sexual offences where the nature of the crime is such that it is likely to leave DNA at the crime scene. I fear that we are moving towards a registry of all convicted offenders. And we are doing this without regard to the original rationale for the legislation and without any compelling evidence that would justify the inclusion of these new offences.
We are here today to urge this Committee to think carefully before taking this step. If the purpose of the DNA Data Bank is to prevent and solve crimes, then before we create a bigger Data Bank by adding new offences we should focus on creating a better Data Bank.
Do we even know if the existing DNA Data Bank is operating as efficiently as possible? Does it have the resources it needs? According to the 2002-2003 Annual Report of the National DNA Data Bank of Canada, the Data Bank was only receiving slightly more than half of the expected samples as of mid- 2003. We also understand that there is a significant backlog at the regional level in the processing of samples.
Unless and until the Committee is provided with a clear rationale and empirical evidence supporting the inclusion of the new offences being proposed, we would recommend that these provisions not be adopted at this time. Rather, consideration of these provisions should be deferred until the DNA Identification Act is reviewed a few months from now, as per section 13 of the Act which calls for a review within five years from the time it came into force in June 2000. Then there will be the opportunity to consider the legislation in a more holistic and coherent manner than is possible at this time.
Thank you very much for your time today.
I would be pleased to respond to any questions you might have.
1 R. v. S.A.B. [ 2003] 2 S.C.R. 678, at para 48.
2R. v. Burlingham  2 S. C. R. 206, per Iacobucci J. at para 50, cited with approval by Cory J. in R. v. Stillman,  1 S.C.R. 607, at 126.
3 R. v. S.A.B. [ 2003] 2 S.C.R. 678, at para 19.
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