Hon. Senators: Agreed.

(Motion agreed to.)

(At 5:30 p.m., the Senate was continued until tomorrow at 2 p.m.)

Some Hon. Senators: No.

Hon. Raymonde Saint-Germain: Honourable senators, I rise today to join the debate on what I consider to be a crucial discussion regarding the ability of the Senate to fulfill its constitutional duty of sober second thought. I want to thank Senator Tannas for putting forward this discussion. I do so as an independent senator and not as ISG facilitator. This is a disclaimer — a preemptive move. I want to share my view on this issue, knowing very well that some of my ISG colleagues will agree and some will disagree. This plurality of opinion and expertise paired with mutual respect is, I believe, one of the strengths of our group.

Allow me first to speak to the context surrounding this motion and on the existing tools we currently have at our disposal. I will also share my thoughts more precisely on the content of the motion that aims to solve the problem that we often face nearing the end of a session or before rising for the winter and summer recess: the rush and the inability to properly study and improve bills coming late to the Senate. I believe we can all agree that the Senate is the master of its own destiny. We should not accept or fold in the face of pressure from the government or the House of Commons that would prevent us from fulfilling our role as senators. On this, I concur with Senator Tannas. However, I believe we have now, within our rules, the power and the ability to provide our sober second thought while working in a complementary way with the elected House as the Canadian public expects us to do.

Let me continue by citing some of the tools that we have at our disposal. We have the ability to do pre-studies on bills that we know will arrive late for our consideration in accordance with rule 10-11(1). This practice is beneficial because it allows us to be ready for debate and, eventually, amendments when the bills arrive in circumstances requiring a diligent and timely response.

We also have, in exceptional circumstances, a simple, yet effective, option: sitting for a longer amount of time. When it comes down to it, the onus to properly study a bill is on us. Notably, there are no rules that say we must adjourn three days after the other place. So then why not sit for one week, two weeks or any amount of time that is needed to complete the work Canadians expect us to do? Bills do not arrive in the Senate with an expiry date, after all. I know some of my colleagues will argue that sitting longer would not solve the issue and that we could not amend bills while the House is adjourned. But I see it differently. Let’s remember that the Senate is the master of its own destiny. There is nothing preventing us from amending these late-arriving bills and sending them back to the other place.

Actually, I agree generally with the notion that the bad planning of the House is not the Senate’s emergency, as stated by the leader of the Canadian Senators Group. However, it is up to senators to express the collective and individual will to sit on days when they do not wish to and stay later than what is indicated on proposed sitting calendars in order to achieve the goal of having thorough examinations of pieces of government legislation.

I want to address the questions surrounding the notion of sending a Senate amendment on a piece of government legislation back to an adjourned House of Commons. Doing this is not simply an ISG problem, a CPC problem or a CSG or PSG problem. It is, in fact, not a Senate problem at all. This is a government-of-the-day problem. This is a House of Commons problem. It is their problem to address it if the situation arises.

We shall keep in mind that the Speaker of the House of Commons has the authority to recall MPs during those break periods in accordance with rule 28(3) of the Standing Orders of the House of Commons. As for us, we would only be fulfilling our constitutional duty, and frankly, colleagues, I do not believe we shall then have to apologize for doing our collective job in keeping the government to account.

Consequently, I also wish to address Senator Tannas’s statement made in his speech of February 8 that “. . . CSG senators will not grant leave to facilitate or waive our rules on the passage of any legislation anymore.”

While I agree that waiving leave of the Senate is an important tool at our disposal and that the practice of granting leave has been vastly used — maybe overused — in this pandemic period, I strongly disagree with this Pavlovian response to deny leave. It doesn’t mean that because of some past abuses there is no merit in granting leave to some urgent issue that would, if legislation is adopted swiftly, greatly benefit Canadians. For example, would any colleague who cares for public interest really be comfortable denying leave of an urgent supply bill, even in a case where that bill had been thoroughly studied by our own expert senators at the National Finance Committee? I don’t believe so.

Allow me to use the example of Bill C-10, An Act for granting to Her Majesty certain sums of money for the federal public administration for the fiscal year ending March 31, 2020. It was passed in one day in the Forty-third Parliament on March 13, 2020, at the very beginning of the COVID-19 pandemic. We passed Bill C-10 with leave of the Senate to provide important benefits to Canadian citizens and enterprises for the difficult times ahead.

It was necessary at the time to meet the needs of Canadians and it may still be necessary in the future. While in the worst peaks of this pandemic, we had the duty to act timely in the best public interest. This is not a nuance, colleagues. It is the realpolitik we were then in. Hopefully, the worst of the COVID-19 pandemic is behind us, but we are not immune to tragedies or natural disasters that would require urgent action and approval.

To further highlight the negative effects of this dogmatic approach — and even ill-conceived sophistry — I would like to refer to the debate we had recently on the Emergencies Act. The choice of some of our colleagues to deny leave on a request to waive the usual one-day notice and expedite the debate, while totally valid within our rules, ended up slowing down our work and ensuring that many senators — 16 for the ISG alone — were, in the end, not able to rise and speak to this vital issue. Had this permission been granted, we could have debated on the Friday and on the following Monday.

And what about Bill C-6, An Act to amend the Criminal Code to ban the practice of conversion therapy? It was tabled in late June 2021 in the Senate, but we were not able to pass that bill because leave was then denied for us to do a pre-study. That bill had close to unanimous support in the chamber and was urgently requested by independent experts and the LGBTQ2+ community. Furthermore, it was adopted with leave of the Senate in this new legislature. So, then, why needlessly block its pre-study last summer?

I must say, I think those examples prove the counterproductive nature of this practice and are not in line with the ideal of legislating in the best public interest.

It is, furthermore, proof that Motion No. 30 is superfluous. Since the opening of this Forty-fourth Parliament, Senator Tannas himself has used our rules almost systematically to deny leave, thus preventing the Senate from being rushed by the government or the other place.

I do not agree with the terms of the debate as expressed in the third point of the motion. Limiting debate time to 20 minutes with 5 minutes to each senator would mean that only four could speak up during debates. I feel it would be greatly unjust, letting aside the superficiality of this approach.

Between the recognized groups, the Conservative caucus, the non-affiliated senators and the government representatives, somebody is assured to go unrepresented.

For my own group, the ISG, the option would not be viable. Even in the case where one of our members should rise and speak to the urgency of a bill, it would be impossible for the senator to do so as a spokesperson or representative for the group. Other ISG senators could disagree and feel unrepresented in the debate.

I am sure many of my colleagues from other groups will feel the same way. This approach is simply not aligned with the realities of the contemporary Senate.

However, I must salute Senator Tannas on his openness to suggestions and improvements, which demonstrates his long‑standing and unwavering dedication to the efficiency of the Senate.

Colleagues, the motion before us today is a political statement. It is a demonstration of bravado in response to frustration from the perceived dismissiveness of the other place, which I share. However, it is not necessary nor substantiated if we take a closer look at the rules and if we have the collective courage to apply them properly in combination with a good plan for our parliamentary work.

Moreover, it is only a temporary solution, considering it would only be a sessional order and would not amend any of our Rules. It is so unsubstantiated that, for instance, the Government Representative in the Senate has not, either in the last Parliament or in this new one, used the pressure tool that is time allocation. Instead, he has sought to build consensus among senators. We must keep working in this collegial way.

I will now conclude, hoping that Senator Tannas will still be my friend, with the wise words of a former senator, the late Michael Pitfield, taken from the foreword of the book Protecting Canadian Democracy: The Senate You Never Knew:

Longstanding experience in public administration has taught me to approach anything as challenging as Senate reform with prudence and a reserve of humility. . . .

Those wise words shall inspire us to take our distance from group branding and political bravado. Rather than safeguarding the Senate’s sober second thought, this motion would lead us to the denial of the various options we are already provided with by our Rules and by the rules of the other place. Actually, it would simply delay our parliamentary works, both in the chamber and in committees, at the detriment of the timeliness required in times of need.

That is why I will not support this motion.

Senator Gold: Well, to my dear colleague at the Senate, thank you for your remarks, thoughtful as always.

Senator Lankin, you have had the benefit of being in the chamber since the beginning of the current government. I am sure that you will recall that, over the last six or seven years, the Senate has spent considerable time and effort on many critical and crucial pieces of legislation, such as cannabis legislation, gun control legislation, Indigenous reconciliation legislation and legislation regarding medical assistance in dying.

The Senate’s treatment of these issues, its robust study and debate on these issues are well-documented and, might I say, were done with very little government pressure, were done collegially and without time allocation motions. There has not been one yet used.

We also know how frequent it is — we are living it these days, also — for government items to be adjourned, to sit on the Order Paper for weeks on end with no debate whatsoever, with no speaker, sometimes for many consecutive days, if not longer. There is little that the government can do in these circumstances to prevent this.

I come to my question.

When you look at the entire record of this government, especially taking into consideration, as you noted, the uniqueness of the pandemic through which we have lived for the last two years, in your heart of hearts do you really think that the government has been guilty of irresponsibly or unnecessarily rushing the work of the Senate?

Senator Housakos: Thank you for that very thoughtful speech. Again, it was well articulated.

Senator Tannas, I hope we’re still friends after I ask the question, but we’ve done a fair amount of naval-gazing in this place. We’re always looking at the Rules. Of course, I’m not against the idea of constant improvement. Nothing is static. We should review the Rules.

However, I’ve been here a number of years, and at the end of the day, we have rules to give certain advantages to the government. We have rules to protect the role of the opposition. I’ve looked at the last few parliaments. Have there been any examples where we haven’t found a consensus to make sure the opposition’s voices are heard? Are there any examples where this chamber hasn’t respected the agenda and timelines of the government in order to respond to important issues, be it during COVID or what-have-you?

It seems that every time we engage in debate here, we need to fix something. I listened to your speech carefully, and it doesn’t seem that the proposition that we have here is fixing anything. Is it really fixing a problem that exists?

Second, we also have time allocation, which the government, of course, has hailed as a badge of honour due to the fact they’ve never used it, which it is, because it also indicates that we have found consensus among leadership, even though we’ve added so many leadership groups.

Would you agree that we’re not really fixing anything at this particular point with this motion?

Senator Miville-Dechêne: I agree with what you said in your speech, but I wanted to ask a question about something specific that has always seemed very simple to me but that also seems to cause huge problems: our schedule.

The problem I have with Senator Tannas’s motion is that it doesn’t take into consideration what we can do to give ourselves more time to study bills. I have to tell you that it’s bewildering how, during the first months of a parliamentary session, we’re always rushed because of upcoming break weeks. We have very little time because of break weeks and our three-day schedule here. That said, our senators’ schedule is surely the main tool we have to work longer hours so we can study government and private members’ bills more in depth.

Ever since I arrived, it has seemed to me that we can’t expect any sympathy from the public if we say we don’t have enough time to study bills, especially if people take a close look at our schedule. I know what I’m saying is a little harsh, but I think it would give us a lot of power if we could all agree to modify the schedule.

Hon. Marty Deacon: Thank you for your speech.

Something I think we’re all thinking about is how we practise and do our work, how we are efficient and how we can do better. I have great empathy and respect for the day we spent before Christmas, on December 17, which was much guided by Senator Tannas. I thought that was a very important day. We took an extra day. I’m sure for some folks that might have even been a stressor going into Christmas, but it was good to have that day and to be able to step back from it.

I am continuing to ask my question — and thank you to Senator Lankin, also — on the problem we’re trying to solve. I hate to be that basic here, but I find that’s where I need to go back to because we do have a set of standards, a set of rules, that we follow. And we do have a problem that we all seem to look at, at the end of June and before Christmas, that we never want to be in again. We want to get away from this.

Is the problem that we don’t have the collective courage and understanding on how we can take the rules of the game in this frankly oversized sandbox — and I mean that in the kindest of ways; I really do, but it’s an oversized sandbox — of understanding how we can progress forward so that we are not sitting again — we might feel an artificial sense of security because we have heard — yes, we have heard — that we might be in a somewhat more stable position until 2025. I don’t know if it’s true or not, but we’ve heard that. So people might think, “Oh, well, this isn’t a rush because I think we’ve got some time.”

What is the collective courage that we need, in your opinion, to make this right within the rules of the game in this sandbox?

Hon. Scott Tannas: Thank you, senator, for your intervention. We are still friends.

I wanted to ask for your comments on a couple of things. First of all, let me say I totally agree with you. I know Senator Mercer mentioned this at Christmastime.

We have to be brave enough and apply the right amount of sobriety to a decision to reject any argument that says we shouldn’t amend because the House of Commons has gone home. I agree with you. If we collectively say we will do that, then I have no problem staying here for as long as it takes to thoroughly study bills at the end of sessions. But it is galling that we are asked to whistle something through, not study it properly or be able to deal with amendments.

I want to associate myself with that portion of your speech.

I think I said that I don’t believe that Motion No. 30 is going to fix all of our problems, but there have been some scenarios, and you mentioned some in your speech. Let me give you some scenarios where this would be helpful.

We know that in our Rules a piece of legislation needs two days to go from first reading to second reading, and one day to go from second reading to third reading. This would eliminate that. Instead, at second reading the leader could stand up and say, “This is an emergency. We need to get rid of the two days and the one day, and we need to focus on this because of time.” We could then take it from there. We could send it out for a two-day study. We could do whatever we want, but we’re not wasting time on days.

The scenario that I also wanted to raise was one that didn’t happen but very nearly happened in this chamber in the last week, and that would have been back‑to-work legislation where the modus operandi would have been to ask for leave and would have put at least one member of this chamber in the incredibly uncomfortable spot of granting leave in order to speed up back-to-work legislation. If we had this, that senator and others could exercise their right to object without having the wheels go off the cart.

I’m wondering what piece of the Rules you would imagine we could use that could then replicate this in a way that is within the Rules. In other words, how do we suspend without granting leave and requiring every single senator to sit with their mouths shut and on their hands in cases where maybe it’s a religious thing, maybe there is a key piece of social legislation that they vehemently oppose? That’s familiar, where there is an emergency and we need to get it through for whatever reason. That was being somewhat sold to us at Christmastime on Bill C-6.

How do you see this going? This may not be the answer, but I’m interested to know what thought you gave to some of those scenarios that we have confronted or very nearly confronted.

Senator Saint-Germain: Thank you, senator. You see the problem that I see. Even from Quebec City, it takes me six hours to come here, but we disagree on the solution.

I do believe we could organize our time in order to sit during the usual three-day week that we have planned but to reorganize our schedule and rethink this. At the same time, I also believe that if we have the courage to send a message with amendments to the other place and that means that the Speaker of the House will have to call back the other place, then they may also want to reorganize their work.

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

(On motion of Senator Gagné, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.)

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

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.

Hon. Frances Lankin: Senator Simons, thank you. That was another eloquent speech by you. It’s much appreciated.

I particularly like the phrase that you brought forward from the Conservative strategist about a “thought scam.” I’ll elevate my language because I have been calling it a “bot scam.”

Quite frankly, it’s not just Bill S-233; this began immediately following the occupation that took place in Ottawa. It involved communications legislation, which you were just referring to, and others.

It is absolutely clear to me that a large majority of these have been electronically generated. When they come in 1,000 at a time and they have very similar themes, you know those are not individuals.

I have also reached out — when it appeared to be a genuine, individual person — to discuss it, to tell them my views, to tell them what I think the reality is, but the other ones, any that I have tried to reach, there is no reaching because there is no person. This is fundamentally an issue of an undermining of democracy.

Do you, Senator Simons, think there is, beyond our individual actions, a collective response from the Senate that should be taken? The leaders of the various groups in the Senate, some of whom —

Hon. Frances Lankin: Honourable senators, I think there may be some controversy here. I truly appreciate your speech, senator. In addition to Senator Simons’s speech, this is an important moment in the Senate, with a laser focus on this. I want to ask you three questions.

First, you said that you didn’t think the registry was a silver bullet. Will you explain how the registry would work and how it will help? Embedded in that is an understanding of how some of this foreign influence takes place, that the people doing the targeting are not always obvious and that names could not always be added to a registry.

Second, if there were a criticism of your bill, what do you think it would be? Where could the bill be improved?

Third, is there something the Senate could do beyond passing or amending your bill to bring greater focus on this issue? Is there a joint project in which we should be engaging? Thank you very much.