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.