Hon. Jean-Guy Dagenais: Honourable senators, I rise today at second reading stage of Bill S-231, which seeks to increase the identification of criminals through the use of DNA.

As a former police officer, I would say that Bill S-231 will provide our judicial system and our police forces a technological modernity that will ensure that Canadians are better protected because justice will have more means for identifying and convicting criminals. In short, we have to shift from the era of fingerprints to an era of genetic profiling.

You would agree that science and technology have evolved considerably since the arrival of fingerprinting as a tool for legal identification. The use of fingerprinting goes back to 1902, or 120 years ago.

No one is challenging fingerprinting. When a person is charged with a crime, their prints are taken. It is an accepted and legally well-defined practice.

Under the provisions of Bill S-231, the collection and use of the DNA of an individual charged with serious crimes, properly regulated, will give the Canadian justice system new means that will make it possible to formally and scientifically identify suspects and victims and to limit the possibility of wrongful convictions.

In Canada, the RCMP’s National DNA Data Bank was created 22 years ago and already contains the profiles of more than 500,000 offenders. The NDDB, as it is known, has improved its operations and technology over the years, and it has become an invaluable support for our police forces.

The NDDB already plays an important role in the legal system, but DNA science could contribute even more. It could play a bigger role in tackling crime if our laws made it possible to increase the number of profiles collected from offenders convicted of serious crimes in Canada. That is precisely what Bill S-231 would do.

The National DNA Data Bank must become an even more effective tool for investigators. In 2022, investigators should have access to existing scientific evidence that will satisfy our courts as they determine whether someone suspected of serious crimes is guilty.

Fingerprints do not compare to DNA when it comes to scientific accuracy in identifying people. Furthermore, police officers use DNA to do more than identify suspects. It is also used to officially identify victims, even after decades.

Bill S-231 proposes expanding Canada’s DNA sampling, which I hope will eventually lead to a judicial outcome for many of Canada’s unsolved crimes.

The NDDB’s DNA samples and personal information are already well protected, and Bill S-231 does not change these important privacy protections. Instead, it seeks to increase the chances of making a match. To that end, the bill proposes increasing the number of offences that require the court to order the convicted person to provide a DNA sample to the data bank.

This provision of the bill received a lot of support from the National DNA Data Bank Advisory Committee, a group of experts who advise the Commissioner of the RCMP on all matters relating to the operation of the National DNA Data Bank.

For reference, Bill S-231 is the second iteration of Bill S-236, which died on the Order Paper, but was first introduced in the previous Parliament.

On September 6, 2021, the NDDB Advisory Committee commented on Bill S-236, as follows:

A DNA data bank is only as strong as the number of profiles it contains. The proposed amendments [in Bill S-236 from 2021] will not only improve the efficiency and effectiveness of the National DNA Data Bank, but they will also provide Canadians with access to the latest proven methods of DNA identification that have been very beneficial to people in other countries for some time.

Three reports have also recommended that more offences should result in a DNA sample being taken from a convicted offender, and these same reports have also recommended limiting the court’s discretion to not impose the taking of a sample. The first is the 2009 report of the House of Commons committee responsible for the Parliamentary review of the DNA Identification Act. The second is the 2010 report of the Senate committee conducting the same review. The third report is the 2017 report of the Standing Senate Committee on Legal and Constitutional Affairs on its study of delays in the justice system. These three reports from 2009, 2010 and 2017 are consistent with the substance of the bill before us.

Bill S-231 therefore proposes ways to address the flaws that have already been identified. It establishes reasonable recommendations that broaden and simplify the definition of designated offences that allow for the collection of DNA from convicted persons.

More specifically, this bill proposes that, without possible exception, the court order a sample for the National DNA Data Bank when the criminal offence carries a maximum sentence of at least five years imprisonment.

If this bill comes into force, all violent offences against the person in the Criminal Code, since they all carry a maximum sentence of at least five years, will result in the taking of a mandatory DNA sample. The same goes for other crimes that put public safety at risk, such as drug trafficking, or more serious Criminal Code offences with respect to crime against property.

The bill proposes limiting the court’s discretion to refuse an order authorizing the taking of a DNA sample for a conviction on an offence carrying a maximum sentence of less than five years.

This measure has two exceptions. The first exception concerns offences that can only be prosecuted on summary conviction and not by indictment. These offences, referred to as purely summary offences, are considered less serious in criminal law. For this type of offence, the bill upholds the current situation, whereby the court cannot order the offender to submit a DNA sample. The second exception applies in cases where the offender satisfies the court that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. This last exception already exists in the Criminal Code for certain designated offences.

As for their constitutionality, the measures proposed in the bill that seek to increase the number of collection orders for DNA samples at the time of conviction can also be supported by substantive decisions handed down in several court cases in Canada.

Bill S-231 also proposes other important measures that would make DNA collection in criminal cases more common and more efficient. For example, it proposes to allow, under strict conditions, familial searching in the National DNA Bank. This technique, which would be authorized under the bill, consists in verifying whether the DNA found at a crime scene corresponds to the genetic profile of a close relative or a person listed in the bank. It is essentially the same analysis as that carried out in DNA tests to establish paternity or kinship. In other words, familial searching does not seek to obtain perfect matches between two genetic profiles. Instead, it seeks to find profiles in the bank that are very similar to the profile obtained at the crime scene when there is not an exact match in the bank.

This bill would enable the police to order further research in the bank so they can investigate whether the unknown perpetrator is related to someone on file in the National DNA Data Bank.

Yes, this is a little technical, but it is not really new. Many countries already permit familial searching in their DNA data banks. This investigative method is being used successfully in the United Kingdom, Australia, New Zealand and U.S. states such as California, Florida and New York.

Bill S-231 is a little different though. It would amend the legislation to include conditions governing familial searching, which is a degree of oversight over and above what exists in other jurisdictions that already allow this investigative technique.

Familial searching could reopen a number of cold cases if this bill comes into force. It is entirely possible that the option provided by Bill S-231 could give the police the name of a person on file in the bank who is related to the person whose DNA was found at the scene of a crime. This might seem like no big deal, but sometimes it can result in the identification of a dangerous criminal.

I believe that, in many cases, the use of familial searching would help solve very serious crimes for which the offender is unknown and still poses a danger to the public. I am thinking, for example, of cases of murder, kidnapping, sexual assault with a weapon, firearms or carfentanil trafficking, or even terrorism offences.

Familial searching would allow investigators to identify offenders more quickly to stop them from victimizing more people. The RCMP’s National DNA Data Bank Advisory Committee has spoken in favour of this move. I want to share an excerpt from its 2019-20 annual report, in which the committee set out the advantages of and need for familial searching. I quote:

In 2015, the Advisory Committee . . . once again reviewed this matter and concluded that the value of familial searching to solve challenging, serious cases and protect Canadians outweighs the inherent risks associated to its use.

The committee also pointed out a very important aspect of familial searching, stating that it could be used to exonerate the innocent or, in other words, limit miscarriages of justice.

The other important point is that Bill S-231 includes an addition to Bill S-236 regarding familial searching, which was introduced in the previous Parliament. It proposes to expand familial searching beyond the convicted offenders index to include the victims index, the missing persons index, the voluntary donors index and finally the human remains index. This change is the result of a suggestion made by the National DNA Data Bank Advisory Committee. Allowing for familial searching of the data bank would provide an additional tool to resolve investigations more quickly, which could save lives.

Bill S-231 also requires the Minister of Public Safety to prepare a report within two years of the legislation coming into force. The report would seek to determine whether DNA can be taken from persons arrested or charged with an offence in Canada without the need for a warrant from a judge.

In other words, this report will consider whether it is in the public interest to change the law to allow for the collection of DNA from a person presumed innocent in the same way that the Identification of Criminals Act currently allows for the collection of fingerprints. Taking DNA samples at the time of arrest is permitted in the United Kingdom.

This type of change in our laws is crucial. It will help Canada and its police forces, whose fingerprinting methods are 120 years old, by adding a new, proven, scientific and much more accurate method, that of DNA identification. Senators will recall that DNA evidence helped convict Robert Pickton, Canada’s worst serial killer. Therefore, this is an important and modern tool to which Canadian police should have better access.

For all these reasons, I urge you, esteemed colleagues, to support Bill S-231. Thank you.

(On motion of Senator Duncan, debate adjourned.)

[English]

On the Order:

Resuming debate on the motion of the Honourable Senator Boniface, seconded by the Honourable Senator Hartling, for the second reading of Bill S-232, An Act respecting the development of a national strategy for the decriminalization of illegal substances, to amend the Controlled Drugs and Substances Act and to make consequential amendments to other Acts.