Hon. Brent Cotter moved the adoption of the report.

He said: Honourable senators, I have the honour of presenting to the chamber the report of the Legal and Constitutional Affairs Committee’s report on Bill S-231, which began consideration before our committee before December 13, 2023. Our report came to the Senate on December 13, 2023. This constitutes my brief speech with respect to the committee report. I want to thank the chair of the committee, Senator Jaffer, for making this opportunity available to me.

The bill, sponsored by Senator Carignan, is entitled “An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.” The short title of the bill, which better conveys its import, is “Increasing the identification of criminals through the use of DNA Act.”

Generally speaking, the bill proposes legislation that amends a series of laws — the laws I have just mentioned — so that the collection of DNA from people convicted of serious criminal offences and people found not guilty on account of mental disorder would be expanded in terms of the categories of persons and offences where DNA can be collected and placed in the DNA data bank.

The bill would also expand, in limited circumstances, the ability of investigative police agencies to obtain information with respect to investigations under way in what are known as familial searches. This is when there was not a direct match between the DNA found in an investigation and a person whose DNA profile is in the data bank, but there shows a match with a person who has a genetic affiliation to the person whose DNA is in the bank. These are known as familial searches. The bill was substantially amended at committee. In a moment, I will highlight these amendments.

Your committee met on four occasions to consider the bill, beginning on November 9, 2023. There was one committee meeting for a clause-by-clause study, which was held on December 7, 2023.

Three amendments proposed at committee were adopted, and four clauses of the bill were defeated. The key changes to Bill S-231 are as follows:

First, clause 3 of the bill regarding mandatory DNA orders was defeated.

The Criminal Code currently requires a defendant to provide a DNA sample where they have been convicted of or received a discharge for what are known as “primary designated offences.” Primary designated offences are serious offences under the Criminal Code, including several sexual offences, murder, manslaughter, aggravated assault, robbery and others.

A court also has the discretion in these circumstances to order a defendant to provide a DNA sample where they have been convicted, discharged or found not criminally responsible in cases of what are known as “secondary designated offences.”

Clause 3 of the original bill would have amended the Criminal Code to require a DNA order following conviction, discharge or a finding of not criminally responsible on account of a mental disorder for any primary or secondary designated offence, with some exceptions.

The committee removed this clause from the bill, leaving the Criminal Code unchanged with respect to the authority of the courts to either have the power to or make a requirement to issue these DNA orders.

Second, clause 4 of the bill, which is the timing for such orders, was also defeated.

Clause 4 of the original bill set out the timelines during which a court would have been required to make a mandatory DNA order. This clause was connected to and followed the proposed amendments under clause 3, about which I have spoken.

The committee — by majority — removed this clause from Bill S-231.

A third clause related to what are known as “familial DNA searches” was also defeated.

Clause 18 of the bill would have amended the DNA Identification Act to allow familial searches of the National DNA Data Bank in certain limited circumstances. This would have enabled a search of the National DNA Data Bank for a DNA profile that could identify a biological relative of the person whose DNA was in the data bank.

The committee — as I say — removed this clause from the bill.

Fourth, clause 20 deals with amendments related to destroying DNA profiles contained in the convicted offenders index of the data bank if the person is acquitted of the charges tied to the original DNA order, and if the accused had no other findings of guilt, discharges or findings of not criminally responsible for a designated offence that could have triggered a DNA order originally. The committee amended this clause to remove references to findings of not criminally responsible.

The result of this amendment is that an individual who has been acquitted of a designated offence may request that their DNA profile be removed from the data bank despite a separate finding of being not criminally responsible for another designated offence.

Finally, in terms of major amendments, clause 24 of the bill requires that the Minister of Public Safety and the Minister of Emergency Preparedness report on the advisability of taking a DNA sample on the same basis as fingerprints taken under the Identification of Criminals Act. The committee amended this clause to require that such a report proceed, and should include specific analysis of the inculpatory and exculpatory effects toward the liability or the absence of liability that DNA sampling might have on Indigenous, Black and racialized populations.

I think it’s fair to say — and I’m about to conclude — the committee has conducted serious and often spirited consideration of the bill, and was assisted greatly by the 17 witnesses who appeared before the committee. On the committee’s behalf, I want to extend our thanks to the witnesses who met with the committee.

I would like to make two final observations — if I may — which are a little more personal than the committee report. I think it’s fair to say that committee members did not oppose the use of DNA for investigative purposes. However, a majority of the committee was concerned about the specific situations where the capture and use of DNA would be expanded by this bill, leading to clauses that were uncomfortable for them, and leading to their defeat or amendment.

I anticipate that members of the Senate, members of the committee and its sponsor, Senator Carignan, will expand on these bare-bones comments during the Senate’s study of this report. Thank you.

(On motion of Senator Clement, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Carignan, P.C., seconded by the Honourable Senator Housakos, for the second reading of Bill S-220, An Act to amend the Languages Skills Act (Governor General).

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Galvez, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

[English]

Hon. Brent Cotter, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:

Tuesday, December 12, 2023

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

TWENTY-SECOND REPORT

Your committee, to which was referred Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act, has, in obedience to the order of reference of November 3, 2022, examined the said bill and now reports the same with the following amendments:

1.Delete clause 3, page 3.

2.Delete clause 4, pages 3 and 4.

3.Delete clause 16, page 6.

4.Delete clause 18, pages 7 and 8.

5.Clause 20, page 8: Replace lines 39 to 41 with the following:

6.Clause 24, page 9: Replace line 19 with the following:

“Act, with specific analysis of the inculpatory and exculpatory effects that DNA sampling have had on Indigenous, Black and racialized populations.”.

Respectfully submitted,

BRENT COTTER

Chair

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Cordy, bill referred to the Standing Senate Committee on Social Affairs, Science and Technology.)

On Other Business, Senate Public Bills, Second Reading, Order No. 24, by the Honourable Leo Housakos:

Second reading of Bill S-247, An Act to amend the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

[Translation]

Some Hon. Senators: Agreed.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Brent Cotter: Honourable senators, I rise to speak to Bill S-231, as sponsored by Senator Carignan. I speak in support of the bill with two significant reservations that I hope will be studied at committee.

I see this bill as a contribution to the improvement of the administration of criminal justice in Canada and a contribution to public confidence in law. You all know the challenges: wrongful convictions, wrongful acquittals, et cetera. My remarks are divided into five parts for two reasons: first, to keep me on track; and second, more important, so you can know, perhaps with relief, when I’m getting near the end.

First, an account of law in everyday life. Rod Macdonald, former dean of law at McGill University and now, sadly, deceased, a giant in legal education, wrote an insightful book a number of years ago entitled, Lessons of Everyday Law. He did not use the example I’m about to share with you, but I do want to give you an example of law in everyday life associated with me and my children and perhaps yours. The example is, in a roundabout way, associated with this bill.

When one of my children appeared to have done a bad thing, usually my son, I wanted to find out what happened and perhaps to impose a sanction. I didn’t let him “take the Fifth.” I didn’t require proof beyond a reasonable doubt. Law in everyday life in our household didn’t exactly follow the rules of the criminal law or the Charter of Rights and probably does not in your household either. Unlike that, the criminal law is not quite law in everyday life.

My second point is the criminal law and the frailty of evidence in criminal cases. As we know, in criminal proceedings, various procedural protections are made available to persons accused of crimes. As well, the admissibility of evidence is complicated. The standard of proof for a conviction is high: proof beyond a reasonable doubt. Given the consequences of the finding of guilt and the deprivation of liberty, it is a high standard, justifiably so, and it has been a standard in the criminal law for a very long time. It’s different from what happened in my household, but justifiable, I think.

Most commonly, evidence is introduced to establish a person’s guilt by viva voce evidence — people’s oral testimony based on people’s memories, recollections and veracity. Many research studies have shown the fallibility of people’s memories and how often, even without malice, they fail to observe or misremember the true story.

All of us have experienced this. Let me offer one embarrassing personal example — at least embarrassing to me.

I’m a golfer, but not a very good one. I played golf one time at a very nice golf course, and I had what I thought was, for me, a very good score. Over the years, I recollected that score, and the number got lower and lower as time went on, and I came to believe I had gotten that lower score. Some years later, I encountered the golf score card that you write your scores on, and I was shocked that I had gotten in reality a much higher score than I thought. Human fallibility, I hope.

As well, for the decision maker, the judge or jury in criminal law matters, our ability to detect veracity — whether a person is telling the truth or not — is remarkably fragile. The evidence regarding judges’ and others’ inability to distinguish liars from truth-tellers is striking.

Some years ago, I attended a major judicial conference in Victoria, organized by our colleague, Judge Arnot, as he was known then. One session was dedicated to simulations to identify liars from truth-tellers. I was terrible at it. But I took some consolation, ironic upon reflection, that the judges taking the exercise were just as bad as I was.

Indeed, I have another friend, a former judge, who cynically used to say, “Most criminal cases are decided on a balance of perjury; that is, whoever tells the best lies — and tells them best — wins.”

My point here is not to demean the criminal justice system or judicial decision makers but, rather, to underline the challenges the system presents in getting it right. Part of the fault is not in the stars, but in ourselves and in our own human fallibility.

My third point is David Milgaard and the argument for DNA science.

Most of us are aware of the story of the tragic, wrongful conviction of David Milgaard for murder, and the heroic life he led after he was exonerated. Here is a little bit about that story.

After Mr. Milgaard’s conviction was set aside, he remained in no man’s land: His conviction was overturned, but his name was not cleared. Even the then minister of justice opined during this time, unfortunately and unwisely, that he thought Mr. Milgaard was guilty.

A wide-ranging review was undertaken, but it did not move the needle on the guilt — or innocence — of Mr. Milgaard. In my opinion, we are liable to have been stuck there if not for DNA.

There was a small amount of badly degraded bodily fluid on the clothing of the deceased victim, Gail Miller, believed to be semen from a sexual assault committed upon her, prior to her brutal murder. At the time, it was believed that, given the degradation of the bodily fluid over some decades, there was, at best, a 20% chance of the DNA analysis definitively identifying the perpetrator.

I was the Deputy Attorney General of Saskatchewan at the time. The clothing with the bodily fluid was notionally in my possession. I was urged — strongly in some quarters — that, because of the high degree of likelihood of no result due to this degradation, I should not agree to the DNA testing. I ordered the material to be tested.

Science brought us a definitive answer. The DNA tests, and only the tests, definitively exonerated Mr. Milgaard and led to the conviction of the true perpetrator, Larry Fisher.

Colleagues, I’ve made some good decisions in my career, and I’ve made some bad ones. My decision, contrary to advice, to have that DNA testing done was, I think, the best professional decision I ever made.

I’ll direct our discussion to Bill S-231. While some Canadians may not be aware of this, presently judges are empowered to order the taking of DNA from an adult or youth, who is convicted of certain offences, and have that DNA placed in a data bank. The power to do this has been upheld in the courts.

Building on this process, Bill S-231 proposes to amend the Criminal Code, Criminal Records Act, National Defence Act and DNA Identification Act, with a view to increasing the number of DNA profiles in that bank.

Proponents of the bill argue that increasing the DNA samples available increases the chances that the police will find a match and, in turn, provide meaningful scientific evidence associated with a crime — essential evidence to identify perpetrators.

This legislation would significantly broaden our ability to collect DNA by broadening the list of offences, known as designated offences, for which DNA collection is allowed. It would automatically allow the collection of DNA from all adult offenders and youth offenders convicted of virtually all serious offences under the Criminal Code and other acts — offences punishable by imprisonment of five years or more.

The legislation would also restrict judicial discretion, limiting the circumstances in which judges could refuse to grant a collection order.

In the interests of improving outcomes in the administration of justice, with minimal impairment on the rights of offenders, I support this initiative. I believe it will make a contribution to the quality of investigations and decision making in the criminal justice process, and I believe it will use science — in a good way — to help us get things right more often.

I turn to my final point, which is a qualification, or reservation, I have about the bill — one of two reservations. One is collections on arrest, but I will speak here to familial searching.

While the legislation keeps anonymity safeguards in place under the code and the DNA Identification Act, this bill does go further. In certain circumstances, it allows use of the bank for what is called familial searching, which would allow Canadian police to identify suspects — by the DNA left at the crime — by comparing them with a biological relative whose material is in the DNA data bank. Concerns have been raised about this here, years ago, and, more recently, in papers that have been written.

I have reservations about familial searching. It’s a privacy issue. It has a Big Brother aspect, and that makes me uncomfortable. The Assistant Privacy Commissioner of Canada said in a precise, poignant quote about a dozen years ago: “. . . does being the relative of a convicted offender decrease a law abiding citizen’s right to privacy?” I don’t have a definitive answer on that, but I think it’s an important question for us to study.

I am hopeful that, when the bill is studied at committee, this aspect will also be scrutinized — and that my discomfort will either be laid to rest or confirmed.

The bottom line, for me, is that Senator Carignan’s work in this area, and this bill in particular, will be a positive contribution to the administration of justice. It deserves to be supported and studied at committee in a timely way.

Thank you.

(On motion of Senator Petitclerc, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Klyne, seconded by the Honourable Senator Harder, P.C., for the second reading of Bill S-241, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals).

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.

Hon. Claude Carignan moved second reading of Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.

He said: Honourable senators, I rise today at second reading of Bill S-231, whose short title is Increasing the Identification of Criminals Through the Use of DNA Act.

This is the new version of Bill S-236, which died on the Order Paper when the election was called. I would like to mention that the speech I delivered on June 23, 2021, at second reading of Bill S-236, is helpful to understanding Bill S-231. These two bills are similar and have the same underlying goal.

[English]

Bill S-231 will enhance public safety and facilitate the goal of criminal trials to seek the truth. It will allow for faster and more reliable resolution of police investigations and criminal court proceedings through DNA identification.

[Translation]

Scientific developments with respect to DNA make it possible to distinguish one person from another with great accuracy. The use of this technology, which is well established in Canada, has increased the accuracy of evidence proving the identity of individuals who have committed crimes. It also has the advantage of preventing judicial errors by exonerating innocent suspects.

To give you an idea of the accuracy of DNA evidence, I will give you an example from the 2015 Quebec Court of Appeal ruling in R. v. Cartier. This was a double murder case. The evidence showed that the genetic profile of the accused had been found on the inside of a mask left in a vehicle used by the killers. This evidence established that the likelihood of this profile matching someone other than the accused was about 1 in 300 billion.

Before I outline the provisions of Bill S-231, I will explain the process used by police to establish the identity of an individual from their DNA, in order to demonstrate the effectiveness of the bill and the solid privacy protections it incorporates.

The DNA identification process is clearly explained in the Royal Canadian Mounted Police’s 2020-21 National DNA Data Bank annual report.

This state-run bank has collected and managed hundreds of thousands of DNA profiles since 2000, most of them from crime scenes and convicted offenders. As of December 31, 2021, the bank had 422,067 profiles in its convicted offenders index and 193,053 in its crime scene index.

The DNA Identification Act regulates the operation and maintenance of the data bank, while the Criminal Code sets out under which circumstances an individual can be ordered to provide a DNA sample. These are two of the acts that Bill S-231 seeks to amend.

This bank is extremely important, as the Ontario Court of Appeal said in paragraph 82 of its ruling in R. v. K.M., and I quote:

[English]

The importance of the state objective in enacting the DNA data bank legislative scheme, both as it relates to adults and young offenders, can scarcely be doubted. Indeed, I would describe its worth as inestimable in cases such as where the [National DNA Data Bank] facilitates the apprehension of a serial sexual predator, or the exoneration of a person who has been wrongfully convicted.

[Translation]

The data bank contains profiles of both adult and young offenders. This is how it works. Each new DNA profile entered into the data bank is compared against existing profiles. This makes it possible to identify matches between profiles and to identify the perpetrator of a crime. A match is made when DNA profiles from two different crime scenes match or when a DNA profile from a crime scene matches the profile of a convicted offender in the data bank.

When a comparison of profiles in the data bank shows a match, police gain an invaluable lead to help them continue their investigation. In many serious criminal cases, a DNA match can lead to the reopening of an investigation that had been stalled for years.

You should know that there are hundreds of unsolved murders in Canada. The Sûreté du Québec alone has 750 such cases, according to an article by journalist Daniel Renaud published on November 13, 2021. In a 2015 report, the RCMP mentions 204 known and unsolved cases of missing and murdered Indigenous women and girls, with 106 homicide cases and 98 missing cases.

However, the actual number could be much higher, according to the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Imagine how many families could achieve a sense of justice and work through the grieving process if the murderer were finally identified and tried. That is exactly what this bill will make possible by giving police forces more ways to find matches in the bank.

The bank has actually helped solve thousands of investigations. According to its annual report, the bank found 66,539 matches between a convicted offender and a crime scene, as well as 7,211 matches between two crime scenes. Thousands of associations were made for homicides — over 4,000 in fact — and sexual offences — almost 7,000. These are serious crimes that threaten public and personal safety.

[English]

The bank will be even more effective if the Criminal Code were amended to make sure more offences trigger the requirement for convicted persons to provide DNA profiles to the bank, which is what Bill S-231 proposes.

The logic is that when someone is required to provide a DNA sample for a criminal offence, even a lesser offence, that sample may help resolve investigations for more serious offences, whether past or future, that this person has committed.

[Translation]

I want to share two statistics from the data bank’s annual report to support this. First, simple assault offences resulted in nearly 600 associations to murder cases and nearly 1,400 to sexual assault cases. Second, the offences of failure to appear in court or failure to comply with interim release conditions and other offences set out in section 145 of the Criminal Code resulted in 247 associations to murder or sexual assault cases.

That said, since DNA contains a lot of personal information, the National DNA Data Bank has strict rules about identifying an individual based on their DNA. For example, an individual’s profile in the bank is created based on just a fraction of their DNA, which means that the profile does not reveal any medical or physical information about the individual, aside from their biological sex.

To give you some idea of what that means, a DNA fraction in the data bank would be like copying down the first letter from every paragraph in a book. This very long series of letters would be anonymous data that would not reveal the author of the book or its plot. However, this series of letters would represent that book’s unique identifier, since a different book would have a completely different series of letters.

Moreover, the way the bank works, its employees do not know the name of the offender whose DNA sample is in the bank, nor do police officers have access to the DNA samples in the bank. In other words, the person’s name and their DNA sample are separate from the creation of their genetic profile in the bank.

As the Ontario Court of Appeal indicated in paragraph 46 of R. v. K.M.:

The DNA collection kit contains two parts, one with the DNA sample and the other with the offender’s identification information. Both parts of the kit have the same unique barcode number . . . . When the kit arrives at the data bank, the two forms are separated with the sample being retained by the databank and the identification form being sent to the RCMP records unit. From this point on, the processing of the sample at the data bank is anonymous. The donor’s identity remains unknown and no personal information is retained or entered into any DNA data base.

In its rulings, the Supreme Court of Canada has provided other examples of privacy protections for individuals who have a DNA sample in the data bank. The court has explained that when there is a match in the data bank between a convicted person and a crime scene, the police cannot access the DNA sample from the data bank and put it into evidence at trial. Instead, they must obtain a new sample from the person, for example by recovering a discarded item containing his or her DNA or by applying to a judge for a warrant to take a bodily sample from that person. The conditions for obtaining such a warrant are quite strict and are set out in section 487.05 of the Criminal Code.

In this context, the court ruled in R. v. S.A.B. that taking bodily samples under such a warrant represents a relatively modest violation of bodily integrity.

Similarly, the court ruled in R. v. Rodgers that the legal protections associated with the data bank make the loss of privacy for a convicted offender required to provide a DNA sample comparable to the loss of privacy for someone required to provide fingerprints to police upon arrest.

As the data bank’s annual report explains, the methods for collecting bodily samples for DNA are not very invasive. There are three types of collection kits designed specifically for the data bank. The first kit, which is used in 98% of cases, collects small droplets of blood using a finger prick. The other two kits collect samples by rubbing the inside of the mouth or taking six to eight hairs.

We can also find another protection for the information stored in the bank in section 487.08 of the Criminal Code and section 11 of the DNA Identification Act. These sections make it a punishable offence for police officers or officials to engage in unauthorized use of information and DNA samples from the bank.

As you can see, the data bank’s DNA samples and personal information are well protected. Bill S-231 does not change these important privacy protections. Instead, and most importantly, 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.

Accordingly, Bill S-231 seeks to increase the number of criminal offences for which a DNA sample many be taken and to limit it in order to avoid purely summary cases. I therefore ask that you support Bill S-231.

Some Hon. Senators: Hear, hear.

(On motion of Senator Dagenais, debate adjourned.)

[English]

On the Order:

Resuming debate on the motion of the Honourable Senator Pate, seconded by the Honourable Senator Dean, for the second reading of Bill S-233, An Act to develop a national framework for a guaranteed livable basic income.

Hon. Claude Carignan moved second reading of Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.

He said: Honourable senators, I rise today at second reading of Bill S-231, whose short title is Increasing the Identification of Criminals Through the Use of DNA Act.

This is the new version of Bill S-236, which died on the Order Paper when the election was called. I would like to mention that the speech I delivered on June 23, 2021, at second reading of Bill S-236, is helpful to understanding Bill S-231. These two bills are similar and have the same underlying goal.

[English]

Bill S-231 will enhance public safety and facilitate the goal of criminal trials to seek the truth. It will allow for faster and more reliable resolution of police investigations and criminal court proceedings through DNA identification.

[Translation]

Scientific developments with respect to DNA make it possible to distinguish one person from another with great accuracy. The use of this technology, which is well established in Canada, has increased the accuracy of evidence proving the identity of individuals who have committed crimes. It also has the advantage of preventing judicial errors by exonerating innocent suspects.

To give you an idea of the accuracy of DNA evidence, I will give you an example from the 2015 Quebec Court of Appeal ruling in R. v. Cartier. This was a double murder case. The evidence showed that the genetic profile of the accused had been found on the inside of a mask left in a vehicle used by the killers. This evidence established that the likelihood of this profile matching someone other than the accused was about 1 in 300 billion.

Before I outline the provisions of Bill S-231, I will explain the process used by police to establish the identity of an individual from their DNA, in order to demonstrate the effectiveness of the bill and the solid privacy protections it incorporates.

The DNA identification process is clearly explained in the Royal Canadian Mounted Police’s 2020-21 National DNA Data Bank annual report.

This state-run bank has collected and managed hundreds of thousands of DNA profiles since 2000, most of them from crime scenes and convicted offenders. As of December 31, 2021, the bank had 422,067 profiles in its convicted offenders index and 193,053 in its crime scene index.

The DNA Identification Act regulates the operation and maintenance of the data bank, while the Criminal Code sets out under which circumstances an individual can be ordered to provide a DNA sample. These are two of the acts that Bill S-231 seeks to amend.

This bank is extremely important, as the Ontario Court of Appeal said in paragraph 82 of its ruling in R. v. K.M., and I quote:

(1520)

[English]

The importance of the state objective in enacting the DNA data bank legislative scheme, both as it relates to adults and young offenders, can scarcely be doubted. Indeed, I would describe its worth as inestimable in cases such as where the [National DNA Data Bank] facilitates the apprehension of a serial sexual predator, or the exoneration of a person who has been wrongfully convicted.

[Translation]

The data bank contains profiles of both adult and young offenders. This is how it works. Each new DNA profile entered into the data bank is compared against existing profiles. This makes it possible to identify matches between profiles and to identify the perpetrator of a crime. A match is made when DNA profiles from two different crime scenes match or when a DNA profile from a crime scene matches the profile of a convicted offender in the data bank.

When a comparison of profiles in the data bank shows a match, police gain an invaluable lead to help them continue their investigation. In many serious criminal cases, a DNA match can lead to the reopening of an investigation that had been stalled for years.

You should know that there are hundreds of unsolved murders in Canada. The Sûreté du Québec alone has 750 such cases, according to an article by journalist Daniel Renaud published on November 13, 2021. In a 2015 report, the RCMP mentions 204 known and unsolved cases of missing and murdered Indigenous women and girls, with 106 homicide cases and 98 missing cases.

However, the actual number could be much higher, according to the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Imagine how many families could achieve a sense of justice and work through the grieving process if the murderer were finally identified and tried. That is exactly what this bill will make possible by giving police forces more ways to find matches in the bank.

The bank has actually helped solve thousands of investigations. According to its annual report, the bank found 66,539 matches between a convicted offender and a crime scene, as well as 7,211 matches between two crime scenes. Thousands of associations were made for homicides — over 4,000 in fact — and sexual offences — almost 7,000. These are serious crimes that threaten public and personal safety.

[English]

The bank will be even more effective if the Criminal Code were amended to make sure more offences trigger the requirement for convicted persons to provide DNA profiles to the bank, which is what Bill S-231 proposes.

The logic is that when someone is required to provide a DNA sample for a criminal offence, even a lesser offence, that sample may help resolve investigations for more serious offences, whether past or future, that this person has committed.

[Translation]

I want to share two statistics from the data bank’s annual report to support this. First, simple assault offences resulted in nearly 600 associations to murder cases and nearly 1,400 to sexual assault cases. Second, the offences of failure to appear in court or failure to comply with interim release conditions and other offences set out in section 145 of the Criminal Code resulted in 247 associations to murder or sexual assault cases.

That said, since DNA contains a lot of personal information, the National DNA Data Bank has strict rules about identifying an individual based on their DNA. For example, an individual’s profile in the bank is created based on just a fraction of their DNA, which means that the profile does not reveal any medical or physical information about the individual, aside from their biological sex.

To give you some idea of what that means, a DNA fraction in the data bank would be like copying down the first letter from every paragraph in a book. This very long series of letters would be anonymous data that would not reveal the author of the book or its plot. However, this series of letters would represent that book’s unique identifier, since a different book would have a completely different series of letters.

Moreover, the way the bank works, its employees do not know the name of the offender whose DNA sample is in the bank, nor do police officers have access to the DNA samples in the bank. In other words, the person’s name and their DNA sample are separate from the creation of their genetic profile in the bank.

As the Ontario Court of Appeal indicated in paragraph 46 of R. v. K.M.:

The DNA collection kit contains two parts, one with the DNA sample and the other with the offender’s identification information. Both parts of the kit have the same unique barcode number . . . . When the kit arrives at the data bank, the two forms are separated with the sample being retained by the databank and the identification form being sent to the RCMP records unit. From this point on, the processing of the sample at the data bank is anonymous. The donor’s identity remains unknown and no personal information is retained or entered into any DNA data base.

In its rulings, the Supreme Court of Canada has provided other examples of privacy protections for individuals who have a DNA sample in the data bank. The court has explained that when there is a match in the data bank between a convicted person and a crime scene, the police cannot access the DNA sample from the data bank and put it into evidence at trial. Instead, they must obtain a new sample from the person, for example by recovering a discarded item containing his or her DNA or by applying to a judge for a warrant to take a bodily sample from that person. The conditions for obtaining such a warrant are quite strict and are set out in section 487.05 of the Criminal Code.

In this context, the court ruled in R. v. S.A.B. that taking bodily samples under such a warrant represents a relatively modest violation of bodily integrity.

Similarly, the court ruled in R. v. Rodgers that the legal protections associated with the data bank make the loss of privacy for a convicted offender required to provide a DNA sample comparable to the loss of privacy for someone required to provide fingerprints to police upon arrest.

As the data bank’s annual report explains, the methods for collecting bodily samples for DNA are not very invasive. There are three types of collection kits designed specifically for the data bank. The first kit, which is used in 98% of cases, collects small droplets of blood using a finger prick. The other two kits collect samples by rubbing the inside of the mouth or taking six to eight hairs.

We can also find another protection for the information stored in the bank in section 487.08 of the Criminal Code and section 11 of the DNA Identification Act. These sections make it a punishable offence for police officers or officials to engage in unauthorized use of information and DNA samples from the bank.

As you can see, the data bank’s DNA samples and personal information are well protected. Bill S-231 does not change these important privacy protections. Instead, and most importantly, 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.

Accordingly, Bill S-231 seeks to increase the number of criminal offences for which a DNA sample many be taken and to limit it in order to avoid purely summary cases. I therefore ask that you support Bill S-231.

Hon. Claude Carignan introducedBill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.

(Bill read first time.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Carignan, bill placed on the Orders of the Day for second reading two days hence.)

[English]

Hon. Claude Carignan introducedBill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.

(Bill read first time.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?

(On motion of Senator Carignan, bill placed on the Orders of the Day for second reading two days hence.)

[English]