Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 46 - Evidence
OTTAWA, Thursday, December 3, 1998
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-3, respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts, met this day at 10:55 a.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I should like to welcome all of you, including our television audience, to room 257 of the East Block.
This is the committee's sixth meeting on Bill C-3, respecting DNA identification and to make consequential amendments to the Criminal Code and other acts. The bill provides for the establishment of a national DNA data bank to be maintained by the Commissioner of the RCMP, and used to assist law enforcement agencies in solving crimes.
The bill was passed by the House of Commons on September 29, 1998, and received first reading in the Senate the next day. The bill received second reading on October 22, 1998, meaning that the Senate has approved the bill in principle. Bill C-3 was then referred to this committee for detailed consideration.
That consideration began last week, with the appearance of Mr. Jacques Saada, Parliamentary Secretary to the Solicitor General, who is the minister responsible for Bill C-3. The committee then heard two witnesses from the central forensic laboratory of the RCMP, followed by witnesses from the Canadian Police Association and the Canadian Association of Chiefs of Police. Yesterday, the committee heard from the Canadian Resource Centre for Victims of Crime, the Barreau du Québec, and the Department of Justice.
Our witnesses this morning are Mr. Peter Bridge, from the Canadian College of Medical Geneticists, and Ms Marie-Hélène Parizeau, from the Faculty of Philosophy at the Université de Laval.
Further witnesses on Bill C-3 will be heard early next week. Once the committee has heard its witnesses, there will be clause-by-clause consideration of the bill, at which time the committee will decide whether to pass the bill as is, recommend amendments, or recommend that the bill not proceed. The committee will then report its decision to the Senate for consideration.
I should now like to invite the witnesses to make their opening statements, following which there will be a question and answer period.
Professor Parizeau, please proceed.
[Translation]
Ms Marie-Hélène Parizeau, Professor, Laval University: I teach medical ethics and bioethics at Laval University. My presentation will deal with the value judgments underlying Bill C-3, respecting DNA identification. There are different ways of conducting an ethical analysis of the various moral view points that can be adopted. I have chosen a utilitarian approach so as to force us to look at the short-term and long-term implications of this bill. It involves assessing the benefits, something that we do in every day life and that I will try to apply. I will therefore submit this bill to an ethical test.
My presentation will be divided into two parts. First, I will go through the advantages of the legislation and, then, I will talk about the disadvantages of this bill. Finally, I will present a critical analysis in which I will try to summarize most of the elements that I would like to bring to your attention.
Generally speaking, in everyday life and also in public life, we ask ourselves which gains and losses we should assess in terms of utility for the greatest number. In other words, to be effective, a good law must meet a specific objective and be easily enforced. Ethically speaking, a good law must be fair, applying to all citizens in the same manner without leading to any unjustified discrimination. Protection for vulnerable groups can be provided. This is the framework within which I will evaluate the advantages of Bill C-3.
Basically, this bill provides for the selective use of a reliable technological procedure, the DNA test, for the exclusive purpose of identifying an individual by means of DNA data, where a violent crime is involved.
The primary goal of the government is to be able to identify quickly and with certainty a person who has committed an offence, thereby clearing suspects who are not guilty of the offence. There is a clear advantage in the protection of innocent individuals.
The bill specifically states that it covers the offences of murder and rape, or primary designated offences, and the stated objective is public security and the safety of society.
The second objective established by the State is the identification of criminals who might threaten the security -- the safety -- of the State. As evidenced by the reference to certain secondary designated offences -- hijacking, using explosives etc -- the underlying motives are of a political nature. In summary, the advantages of DNA testing pursuant to this bill have to do with maximizing the security of society and the State.
Now we will turn to the disadvantages. I have spoken of objectives and advantages, which are fairly clear with regard to values. In fact, when looking at disadvantages, it is much more important to determine whether the means are commensurate with the aims being set, namely, the values that we have attempted to protect within this bill. From an ethical point of view, the aim of maximizing the security of society and the State by means of DNA testing may be set against the aim of protecting privacy and individual rights and freedoms. What we have here, then, is a conflict of values, between protecting the security of society and the State and protecting privacy and individual rights and freedoms.
What exactly are the infringements of privacy and individual rights and freedoms that may be identified within this bill? I would first like to point out that DNA identification is an extremely effective social control mechanism because it makes it possible to identify a criminal and to set up centralized national and international computer files. I refer to an article that has just been published in Nature Biotechnology: The FBI's National DNA Databank, which clearly shows that the United States, after using DNA identification for seven years, decided to follow the example of Britain, which was grappling with the crisis in Ireland and with terrorism. The FBI has conducted an assessment and it has been found that this legislation has been used effectively.
We can see that the American law is much more restrictive than Bill C-3, and that the latter gives the committee and the government a great deal of leeway in acting in the interests of State security. The American law is therefore more restrictive and more cautious with regard to protecting privacy and individual freedoms. It applies only in the case of convicted criminals, and I quote:
[English]
The FBI index can only collect genetic information on convicted criminals, crime scenes and unidentified human remains. Theoretically, at least, that means the FBI cannot keep a DNA sample or profile from this columnist, or you, or President Clinton, unless we are convicted of crimes. It also means that police or federal agents cannot collect DNA samples from suspects nor even indicted, not-yet-convicted felons -- including terrorists -- for investigative purposes.
[Translation]
My first observation: it does seem strange that Canada, which is always concerned about individual rights and freedoms, reserves a much broader field of action for itself than the United States. This may be a handy way for the Americans to gain access to the international data of other countries on criminals and terrorists, while keeping human rights intact in its own country.
Is this Canada's way of contributing to international security? Should we pay the price of this security by giving less protection to the privacy of Canadian citizens? These are the questions I asked myself when I read this article.
My second observation regarding the disadvantages: DNA identification is not a neutral technique. It involves benefits and risks, and requires the taking of tissue samples. Under the provisions of the bill, these tissue samples will be stored. The Commissioner will have very broad discretionary power over the use of the bodily substances. There are dangers associated with subsequent use of these tissue samples and, in my opinion, the bill leaves the door open as to subsequent uses.
Although we can generally say that the test is highly reliable and highly conclusive in terms of its scientific validity, there is still the question of it being challenged in court. The American literature on this subject is fairly impressive. When one reads about the quarrels between experts that have taken place since 1989, one can expect the same thing to happen in our courts.
My third observation: we may wonder about the costs associated with this new technological tool. From a purely pragmatic point of view, and in the interests of justice, we must ask whether the costs are disproportionate. We must also ask questions about the use of the DNA identification technique from the point of view of distributive and social justice.
I would tend to say that the burden of proof lies with those who are proposing the new technique. Have they studied the costs associated with storing samples, hiring and training technicians, managing records, and challenging tests in the courts, which will mean more lengthy trials and additional fees for lawyers and experts? Has the overall cost been considered in light of the number of cases in which the DNA identification test alone has been able to solve the mystery of criminal identification? From the point of view of social justice, has the priority of these costs associated with DNA identification been determined in relation to other social priorities? What I want to introduce here is a concern for social justice.
We must realize that the storage problem is an impressive one indeed. In the United States, in the last seven years, there have been 400 cases in which criminal identification was possible. During this time, all the American States that signed onto this legislation together collected 600,000 samples and evaluated and analyzed 250,000, under the clause that I mentioned a few minutes ago.
I would like to give you a short analysis to demonstrate why I have serious reservations about this bill.
My first point: This is the first time that a human genetics procedure is being used explicitly for non-therapeutic purposes within a legal framework by the State. I draw your attention to the fact that these are medical techniques that are used sparingly, for example, for paternity tests. This is the first time that we are using a human genetics technique to an end that is not therapeutic. The goal that this bill attempts to achieve is therefore public security.
My second point: the State's direct interest in State security. I wonder about the security syndrome that is having an effect on our country. Do we have a mentality that is increasingly encouraging the State to apply control measures against offenders, instead of trying to find a range of solutions to the different aspects of the problem of criminal behaviour in all its forms?
Because of the way the bill is drafted, I fear we may be on a slippery slope ethically, with regard to both privacy protection and the possible fraudulent use of tissue samples for various purposes. You are aware that research is currently being conducted in the areas of DNA profiles of criminals, more advanced DNA identification and national security, and so there is a danger of diversion to fraudulent use.
My third point: I have to ask myself questions about the distribution of wealth in society. This is entirely appropriate when we're talking about justice. Has the total cost of introducing this technology been evaluated?
My fourth point: When we talk about the ends justifying the means, we may question not only the ends -- which is highly commendable -- but also the appropriateness of the means.
In short, the use of DNA identification for public and national security would now seem to be raising some of the same issues that have always been associated with genetics in the past, including the dangers of discrimination and eugenics. I would remind you of the events that took place during World War II.
Finally, I believe that, from a purely pragmatic point of view, we should be cautious in using DNA technology for non-therapeutic purposes. I regret that, in its current form, Bill C-3 is much too broad. If, for internal and external political reasons, we cannot avoid this DNA identification technology, let us not go beyond the limits that the Americans have placed on their own use. What are we really afraid of? That the State wants to punish killers and thieves? It has the duty to do this. Every citizen expects the State to guarantee a certain level of security, but the end of achieving justice does not justify any means from an ethical point of view.
[English]
Mr. Peter Bridge, Member, Board of Directors (Director, Molecular Diagnostics Laboratory and Chairman, Medical Genetics Research Group, University of Calgary), Canadian College of Medical Geneticists: I am from the Department of Medical Genetics at the University of Calgary, and I am the director of the molecular diagnostics lab at Alberta Children's Hospital. I am here this morning in my capacity as a director of Canadian College of Medical Geneticists, which I will abbreviate as CCMG.
The CCMG has previously had input into the evolution of this bill. On March 28, 1996, we contributed in the form of a written letter to policy analysts concerning the first draft, or one of the early drafts, of this bill. On February 25 of this year, I spoke to the House of Commons committee.
First, I need to emphasize that the Canadian College of Medical Geneticists endorses this bill, and strongly supports the principles behind it. In February, I spoke about a few concerns pertaining to administration of the bill, rather than to the legislative passage of it.
I feel somewhat embarrassed that those comments were taken out of context. I actually saw a newspaper report stating that the bill had been delayed because of certain issues we had raised. That article included a direct quote from my previous testimony, despite the fact I had said that we strongly endorse the bill.
I am thus somewhat cautious and apprehensive about repeating these issues. I hope that you will take them in the context of our overall support for the bill, and bear in mind that these are really issues regarding administration of the bill. I also hope that people will be able to use it for the purposes for which it was designed -- that is to say, for identification. That is the only purpose for which it should be used, and we must ensure that any collateral information is not put to any uses other than the original intent.
Let me give you an example of what I am talking about. There are components of the DNA profile which are currently thought to be completely random, and not associated with any physical characteristics or any medical condition. Let us say that, in five years' time, those components do become associated, though research, with some medical condition. We then potentially have a situation where some information in the profile does reveal something about the person, either now or possibly in the future.
The profile generated will be a sort of numerical profile -- the numerical equivalent of a bar code. That obviously is an extremely powerful tool for the identification of individuals or the matching of a crime scene sample to an individual. In that context, it is a wonderful tool. DNA is the greatest friend of the innocent, whether that is the innocent person who is wrongfully accused, or whether that is the innocent in the larger sense of the general public. It is an extremely powerful tool for the prosecution when used appropriately.
There are precedents where genes have been tested and then, through subsequent research, some secondary function has been ascribed to them. The concern is simply whether there is a mechanism in place where this profile is being stored to maintain its integrity.
I have to say that the profile is an internationally agreed-upon one, where many well-qualified individuals have studied the population genetics of multiple different genes, not only in this country, but also in the United States and all through Europe. They have come up with a panel of genetic markers that they think will be useful for identification purposes, and I certainly agree with them.
Not all of them are what we call anonymous DNA markers. Some are from the regions surrounding known genes, and the concern is more to do with the known genes. If some subsequent additional function is identified for those known genes, then there is a possibility -- I must emphasize it is only slight, but it needs to be addressed -- that this information could inadvertently also provide some degree of medical predictive value.
If the profile is made of what we call anonymous DNA -- that is, DNA that has no known function, and just happens to be variable, but we do not know what it does -- the risk is somewhat lower.
The second issue is that, unlike fingerprints on your hand, DNA fingerprints are inherited very specifically. You inherit half from your mother, and half from your father. Although they are complex and unique to each person, they are definitely inherited. If you have a profile in the data base and you are looking for a match, and if you find a perfect match, then you likely have matched your crime scene specimen to a perpetrator. The concern arises if you find a near miss.
Let us say there are 10 of these genetic markers in the profile. The true guilty party must match at all 10. All of these are variable in the population, so each of us would probably match, just by chance, one or two of those, but not all 10. The concern arises if you match nine out of the 10, or eight out of the 10. That is probably too high to be by random chance, and it probably means that the person from whom the profile is derived is a close relative of the profile in the data bank.
Thus, because they are genetic and they are inherited, it also will potentially provide some degree of information about other relatives. That might not be a bad thing; I do not think it is. However, it does raise the issue that if you have a sample legitimately in the data base from a convict, it does provide a partial profile on his brother, on his mother, on his children, and on other close blood relatives.
Is it okay to have a partial match and say, "Well, he is not the guilty party but maybe we should investigate his brother instead"? That is not a scientific issue, perhaps. Again, I happen to think that it is okay, but obviously there will be people who will take the opposing view.
The DNA technology is not new. It has been used in medical diagnosis for 20 or more years. It has been used in the forensic setting for 10 or more years. As I said earlier, it is an exceedingly powerful tool. My particular experience is using it in the diagnosis of genetic diseases. The revolution caused by DNA testing in that area is absolutely mind-boggling, in terms of the level of accuracy, in comparison with techniques not using the DNA analysis.
Although I am certainly not a lawyer, I believe I am correct in interpreting clause 6(6) of the bill, which talks about unauthorized use. I think that the clause indicates that DNA stored in the bank could not be used for research purposes, such as investigating criminal traits. If my interpretation of that is correct, then we have no problem on that issue. If that clause is not sufficiently strongly worded -- again, we would like to see some modification to it so that the profile can only be used for the identification purposes for which it was intended.
The Chairman: Perhaps before I open the meeting up to questions from the floor, I should tell you, Mr. Bridge, that you may well come around looking for a DNA sample from me because my granddaughter was treated for a genetic heart problem in your hospital, and her life was saved.
[Translation]
Senator Beaudoin: You have some fairly serious, fairly clear reservations regarding DNA identification. I am not saying you are right or wrong. The Americans do not go as far as we do. That surprises me. You say that DNA identification involves risks. You mentioned fraudulent uses. What do you think the State's role should be, as the watchdog of public security? The uses that seem to be proposed appear to me somewhat wide, somewhat extensive. DNA identification draws on a nearly all fields of modern science. Perhaps we are going too far. Perhaps the sample should not be taken when a person is charged, but when he or she is convicted of an offence.
The people who have appeared before us have said that, although this is true, we need to be able to collect DNA data in order to find criminals, to help the police find criminals, to solve a crime.
I would like you to come back to the point regarding risks and the excessive use that we may be making of the DNA identification. I would have no objection to restricting the taking of samples to what is required to solve a crime. I would have no problem with that. But once the sample has been collected, it is there for a long time. Do you object to that?
Ms Parizeau: I wanted to point out this slippery slope. When you use a new technology, there is a huge appetite for it. If you go see a surgeon, he will suggest surgery to you; that is what he is there for. What I am trying to get across vividly is, when you look at the history of technological development, you see that a technology will spread and develop within the framework you allow it. Since the framework of the legislation is extremely broad, in terms of public security and State security, I understand that it leaves huge discretionary powers to those in a position to judge, that is, the trial judge or the RCMP, which also plays a role in State security. There is very broad discretionary power. We can see ourselves heading for much wider applications, as the field of genetics develops and as these tests become more and more advanced and effective. I am impressed by the fact that the United States deemed it wise to limit the use of these technologies to proven criminals, assuming that, in the end, the most serious violent crimes are committed by repeat offenders.
I am simply saying that they were wise to try to keep human rights and privacy rights as intact as possible. I am surprised that, in Canada, we are adopting such a broad framework, knowing that this is a technology that is still developing. One of the witnesses clearly demonstrated the power of this tool and the fact that it does not affect only one person, but also his or her relatives, siblings, ancestors and descendants. It becomes a family matter.
What I am really afraid of is that, with such a broad legislative framework, there is a not inconsiderable danger of going down a slippery slope with a rapidly expanding technology. I think we should have a more cautious attitude. If the United States, after seven years, thought it best not to change their law in order to protect individual rights and freedoms, perhaps we should follow suit.
Senator Beaudoin: I did hear the word "fraudulent". What did you mean?
Ms Parizeau: I meant to talk about getting off course. That is the idea.
Senator Beaudoin: We are going so far, we are being so generous, that we are getting off course?
Ms Parizeau: This was mentioned in connection with technical issues. Since we have access to tissue, even to neighbouring genes, the temptation to go beyond a limited DNA identification means that, in the end, the information might be used for other purposes, for the person's health, et cetera. This information is not neutral and may be used for other purposes. That is what I was trying to show.
Senator Beaudoin: We can limit its use in the legislation to purely criminal matters, for example, State security, et cetera.
Ms Parizeau: I agree with you. If we look at the bill, the list of offences is impressive. Of course, we can place limits in texts. What I fear, in practice, is that we may end up with the technique being used in ways that we may not be able to control.
There is a difference between a technique carried out in a laboratory under optimal conditions and the way things happen in real life. I teach medical ethics. I teach my medical students what they should do. I sit on hospital ethics committees and I do ethical consulting work, and when I consider real life, I see the problems, the unfortunate practices, the rules that have not been followed and which create more injustice than justice. That is my fear, aware as I am of the powerfulness of the tool.
Senator Beaudoin: What would you have us do then? Not use this extraordinary tool because it is too dangerous?
Ms Parizeau: Were there not a little wisdom in this world, I believe that -- for example, take nuclear energy. It is used for both military and civilian purposes. We learned at our peril how to use this type of energy. And we still have problems. When a new technology is being developed, the watchword should be prudence. I am impressed by the fact that the Americans have applied this principle of prudence. If we have to use this tool, let us try to restrict its use while testing it, to determine whether its use could be extended. I advocate proceeding cautiously.
Senator Beaudoin: You are saying proceed, but cautiously.
Ms Parizeau: If you ask me for my personal opinion, I would say no but the political context in Canada is such that there is a huge appetite for this kind of testing that provides scientific certainty -- which is not always easy to come by. With scientific certainty, one has the impression of dealing with the truth, of having conclusive, unshakable proof. This inspires confidence and a feeling of making progress. In some ways, it is true. But technology must always be judged on its advantages and disadvantages. And since the situation is one of a developing technology, limits are needed.
Senator Nolin: I found your presentation very interesting. I have no intention of disputing your concerns regarding the need to show extreme caution when going forward with new technologies that may have consequences that even the most eminent futurologists cannot foresee.
I would like to remind you that the use of genetic codes is allowed in criminal law. In your evidence, you referred to the fact that, in the United States, there had been debate over the probative force of DNA identification evidence. I concede this. This parliamentary debate has already been held in Canada. We are talking about establishing a bank, or bringing together all this data. The proposed legislation recognizes it and establishes it as a basic principle in assisting criminal law enforcement in Canada, hence the protection of society.
After your testimony, I wondered whether we had read the same bill. It provides safeguards to ensure that the use of these profiles and samples is limited to the uses stated in the bill. Is it not the case that you think, instead, that there are insufficient safeguards in the bill? It currently provides for a term of imprisonment not exceeding two years for a person who is found guilty of contravening the provisions of the Act, which means having used the information from a data bank for a purpose other than those set out in the Act. Is a term of two years not enough? I do not think it is, but I would like your opinion.
As far as I know, we are following the same procedure as the Americans. I do not see any significant difference between our bill and that of the Americans. The Americans will take samples from convicted criminals, as we will. The samples will be taken from convicted criminals only, unless Parliament decides to amend the bill. Of course, there will be samples taken at the scene of a crime, but that is the other side of the equation. That is for matching up unknown individuals and DNA data. I was surprised by the comparison you made with the American system.
Ms Parizeau: With regard to the American system, what I am trying to show is that generally, there has been a cautious approach to using samples and that, with regard to public security, to my knowledge, there is no international terrorism component.
Senator Nolin: Are you talking about a specific offence or about a stated objective of the bill? You would want one of the objectives of the bill to be protection from international terrorism?
Ms Parizeau: No, I am simply saying that the American law does not permit this kind of sample in this type of crime. That is where there is a difference in terms of security. What I am trying to show is that we have to consider public security in the cases of violent crimes as well as State security in the case of crimes like hijacking, threats, et cetera. Both of these objectives are used in the Act. The Act lists these two types of criminal offences, which are of two different natures. That is what I am trying to show. Are people aware that all these crimes are being included? In this sense, the American law is much more restrictive for violent crimes. You are right, this is the part that has to be understood properly. Our Canadian legislation matches the American law, except that the extension of DNA identification to State security is not currently permitted.
As for the probative force of the evidence, I was attempting to demonstrate that what is attractive about this technology is that it gives us scientific proof beyond a doubt. The only way of getting around it will be to show that the sample was improperly collected or there were problems with the laboratory analysis. What will be challenged is not the test itself, because we know it is accurate, but the conditions in which the test was conducted. I simply wished to point out that, even though the scientific proof may be valid, there will always be ways to challenge this technology in court. It is a minor point in my arguments, but we should not be lured into thinking that, just because we have scientific certainty, there will be no legal challenges directed at the circumstances surrounding the test. This is part of the legal game. The judicial mechanisms are such that there will certainly be challenges. We must not believe that the test will imply absolute certainty.
Senator Nolin: With regard to the probative force of this evidence, we have a fundamental principle in Canada that states that an accused is not guilty until found guilty beyond all reasonable doubt. If we use evidence whose probative force is such that it does not open a door to reasonable doubt, isn't there a contradiction here with the principle that I just stated, from an ethical standpoint? Should we allow recourse to this type of evidence? In other words, if the person sees the relationship between the scene of the crime and his genetic fingerprint, and the match is perfect, does that person not have access to a fair and equitable trial simply because of the fact that this match is done?
Ms Parizeau: I will not comment on that.
Senator Nolin: It was a trap.
[English]
The Chairman: I would hope that the court system would take that into consideration, the same way they do now when people are placed at the scene of a crime, even though they may not have committed the crime.
Senator Grafstein: I take it that both witnesses have no objection to DNA testing in a particular criminal action to establish either the guilt or the innocence of a particular accused. I am talking about one at a time. In other words, am I fair in saying that the application of DNA for a particular case, assuming it meets the criteria of 10 versus 10 of the tests as we know it, is not objectionable?
Mr. Bridge: I have no objection.
Senator Grafstein: Is the narrow area of testing the same for you as well, Ms Parizeau?
[Translation]
Ms Parizeau: If I understand you correctly, you are telling me that the genetic fingerprint test is morally acceptable to pursue a criminal. That is why I urged caution. In the legislative matters of the State, this is the first time that the law authorizes a genetic test to be used for non-therapeutic purposes. The purpose of genetic testing has always been medical and therapeutic, that is for people's well-being.
Now, the purpose of this test has shifted to something else, which is laudable from the standpoint of justice, but I am simply saying that we must be aware of the phenomenon of using genetics for public security purposes and not for medicine.
I therefore raise an objection in principle by saying that if we do this, let us be aware that it is a first. We must also be aware of the history of the use of genetics from the start, that is since the 19th century, in the case of Naziism, discrimination problems, et cetera.
This is a very powerful tool that is being used for non-therapeutic purposes. It may drift off in directions that had not been considered at the outset. That is the point I wanted to emphasize.
[English]
Senator Grafstein: I understand that you are worried about the consequences. I am trying to divide your evidence into two categories. One category is the narrow application of DNA in a particular matter and time, and only for those purposes.
It is fair to say that we have used -- and countenanced the use of -- science and technology in pursuit of the guilt or innocence of an accused when it comes to the utilization of fingerprints, blood, and hair. DNA is the next expansion of that. It is fair to say this is not the first time that technology has been utilized by the state.
I share your fears about expansion. However, on the narrow point of determining either the innocence or guilt of a particular accused, I take it that you still have no objection to that. You are concerned about the consequences of its wider use in data banks, or for unforeseen purposes. Are you saying to us that you are concerned about even its limited use? I am still not quite following you on that point.
[Translation]
Ms Parizeau: You are right to insist. What I am trying to say is that the very nature of genetic testing is different from fingerprinting. First of all, we have access to a person's genome and eventually, we could identify genes. At that point, it is not only the person, it is the person as he or she is and may be in the future, with tests for a predisposition for genetic illnesses.
There is potential in genetics that we have never seen up until now in the use of this information. Indeed, I do fear the extension of these technologies to various sectors of public life, where in the final analysis, a person will be reduced to his genome. So clearly, it must be used, and as a matter of fact, there is a consensus to use this type of technology.
[English]
Senator Grafstein: We are now familiar with the consequences and the expansion of what the tests can do. The real question is: What are the limits of the acceptable application?
The Chairman: Does this bill meet those areas?
Senator Grafstein: Yes. I will leave it for others to explore more fully.
Mr. Bridge: The scenario that you presented where you spoke about it being used in a single case already exists. This was reported in the newspaper yesterday in regard to a conviction for a 20-year old murder in British Columbia. Obviously that is perfectly acceptable under existing law. You are talking about the extension from that to a DNA database.
Senator Grafstein: To be fair to this legislation, we are trying to balance the interests here. There is a new procedure by way of warrant and assent that is more judicial than the episodic use of DNA.
Returning to the testimony, I will try to connect the principle with the legislation in a moment. You have no problem, however with that part of the bill as it applies to a judicial warrant process and so on, in order to obtain the assent to DNA testing for a single purpose. Is that correct?
Mr. Bridge: No problem.
Senator Grafstein: I want to step back a bit -- and both of you please answer this for me if you can.
What debates have gone on recently either in departments of philosophy or in the geneticists association with respect to this issue?
In other words, we have heard from the state, which says that it is necessary to set up this duplex system. That is, a process of fair and appropriate Charter-provided obtaining of samples, and then the secondary part of the duplex, which is the data banking and the wider utilization.
I am interested in what debate has gone on in the scientific community or the philosophic community on this issue for one reason. As we have followed this debate, we have been informed that the standards, the limits and the perimeters of the utilization of the data bank has been carefully circumscribed so as to be limited to a context of identifiable tests. Those tests are not to go farther in terms of health, or so on, for the narrow purses of identification. We have had very careful testimony on that.
However, when we determine who decides those parameters, we have been told that domestically and internationally there is no government process in those parameters. This is left to protocols and the decisions of scientists. We have been told that it is in the hands of the scientists.
I am interested in the nature of the debate in the scientific community about this, and what the principles of restraint on this are. Has there been any debate?
Unfortunately, for some of us who come here to look at this legislation, we are pretty busy, despite what the public thinks, and I have not followed this debate. The reason I have not followed it is because there has not been a large public debate beyond the confines of the scientific community or the philosophic community. I have heard from theologians about this. Their faith or persuasion does not matter; they are all over the place on this issue.
As Ms Parizeau says, we are asked to make a huge leap in this legislation, and I accept that. Therefore, we are proceeding as prudently as we can to ensure that we are not leaping into the unknown, the consequences of which we will be sorry for a decade or so hence. That is our job as the chamber of sober second thought.
Give us some indication about the debate that has gone on within the geneticist community or the philosophic community, if there has been any. If there are any current articles in that regard, I would appreciate reading them.
Mr. Bridge: The debate is between two sides. One side says that we should take the most powerful test we can, and do it as accurately as we can for the purposes of law enforcement. The other side says that, in taking this sample from people, we are infringing on their human rights. They believe this should not be something to which we subject convicted criminals.
Both sides of the issue were put forth back in 1996 when we submitted a written response at the policy analysis stage. The college at that time probably had about 150 members, and it probably has 180 members across Canada now.
The majority opinion certainly favoured passing the law and using the technology. That is not to say that there were not people who had reservations about whether this was a breach of someone's rights.
The majority vote went with doing the testing. Once that decision was made, it became a debate of what information is contained within that profile. Is there potentially more information than its inventors had envisaged?
The profile is set up using what we call polymorphic or highly variable DNA markers. The choice made by scientists in this case would be to use markers that are variable and that have widely differing populations -- ones that have a high level of discriminatory power between individuals in different populations.
If you want to profile, it is not particularly good to have a marker that will work in a Caucasian population, but not in an Oriental population. The ideal marker is uniformly variable amongst all populations, so that the test is equally powerful when applied to different groups.
If I had been the one to choose the markers going into the test, I would, perhaps, have chosen a few of them differently. Certainly, many extremely capable people were behind the decision on which markers to use.
There is a phrase that says an ex-poacher makes the best gamekeeper. Given my professional exposure as someone who is used to extracting information out of DNA for the purposes of tracking it through families, I am perhaps more aware than others of the potential for gaining inadvertent information.
The first draft of the bill left us with many comments about protective measures. As you said, there are now many safeguards in the bill relating to deliberate misuse. The only remaining concern has nothing to do with deliberate misuse, however. What if information were to surface, through further research, that indicated that this has some consequence or some particular result in the profile? Is there a way to ensure that that is not also misused or deleted from the profile? Would an advisory panel to the DNA data base include appropriate experts in that area, not just population geneticists? They are the individuals most qualified to look at the statistics involved in these profiles. The advisory panel should include medical geneticists, who understand the implications.
Senator Grafstein: My next question is not to be read as though I am being critical of the RCMP. Frankly, I am a great fan of the RCMP. However, as much as we have trust and confidence in the RCMP, the public is best served by a check and balance on any extraordinary grant of power. In this bill, we are granting inordinate power to the commissioner of the RCMP.
Was it your advice that an independent advisory panel should advise on this matter from a statutory standpoint, or was this to be an informal advisory panel as a check and balance on the abuse of the markers?
Mr. Bridge: As you say, you are granting particular powers to the commissioner. Once granted, they are difficult to change.
It would be useful to have some sort of mechanism whereby people understanding the medical implications of some of these tests would be able to have input. They could say, for example, "We thought this was a completely benign nine DNA test; however, we have now found that this result is a predictive factor for Alzheimer's disease". There would then be some mechanism for the containment of that information, in order to ensure that Alzheimer's would not be abused.
There may also be a predictive factor for a psychopathic gene. If that were the case, there could potentially be the temptation to say, "If we release this person on early parole, he will do it again." That, obviously, goes beyond the limits of what we are envisioning for the purposes of identification. Once you grant such a broad power, how can you then fine-tune that? I am not saying cancel it. How can we monitor and fine-tune it? Presumably we could do it with the appropriate mechanism for expert input.
[Translation]
Senator Joyal: Ms Parizeau, I am trying to follow the reservations you have regarding the scope of the bill. If I understood you correctly, two aspects of the bill are of concern to you: the scope of the bill and the control mechanisms.
Regarding the scope of the bill, if I understood your statements and your response to my colleague's questions, you seem to have reservations not about the identification of habitual violent criminals, but rather crimes related to State security, and you cited highjackings, assassinations, kidnappings. Let me describe a scenario to help me understand the reasons for your reservations regarding the second series of crimes covered by the bill, those related to national security.
A criminal involved in a terrorist network is to my mind a person who is intellectually committed to serving objectives that are not limited in time to a single violent act.
For instance, you talked about highjacking. A terrorist highjacks a plane, kills one of the passengers in front of the other passengers, is arrested and found guilty. I have a lot of trouble seeing why the motive for a crime, an assassination, a violent rape of a person, repeated twice, committed against a single individual, and gratuitous from a political standpoint, is less reprehensible than a crime committed by a member of an international network that kidnaps two or three people. Let's take the novel The Jackal. This is a habitual criminal. He has kidnapped several people. He is prepared to kill several people. Why is the motive for that crime, since we are discussing ethics here, less reprehensible than the other? Why should society do less to protect itself from a member of an international network of terrorists than an isolated criminal who has fantasies about a certain type of individual and kills those people? I have some difficulty evaluating the degree of acceptability of one crime versus another.
Political history has clearly demonstrated that people who are prepared to use violence to achieve their political objectives are prepared to do so repeatedly. They are not limited in time to a single criminal act. They are motivated by extremely powerful political objectives. Why is it that in your mind, such criminals should not be subject to identifying their criminal behaviour on the same basis as those who commit individual crimes, child molestation, or that kind of physical violence? Can you make a distinction between the two?
Ms Parizeau: That is a difficult question. I think it is not so much the nature of the crime but rather the issue that in one case, the goal is public security and in the other it is national security. What worries me in the extension to national security is that computerized databases are being created. There can be a sharing of information of these databases. There is a way to use them so that information is exchanged.
What surprised me is that the Americans did not extend the use of genetic fingerprinting to this type of crime. I asked myself why. The question I continue to ask myself is why we feel that this type of crime should be included in the law given that a database is being created that way. Should national security supersede the rights of individuals and privacy? It is much more a matter of balance, and proportionality of methods vis-à-vis the objective sought that raises questions in my mind.
Essentially, by leaving the door wide open for national security, will we be capable of controlling everything? Will transparency be possible, with the control mechanisms that you cited earlier?
That is why I note a substantial difference between the objective of national security, the terms of the law and the list of offences which is quite impressive. It is everything that covers various forms of national and international terrorism. I tried to demonstrate that England used genetic fingerprinting because it was struggling with the problem of internal terrorism in the case of Ireland.
Senator Joyal: The scope of the law is much broader than what we have. It applies only to convicted offenders. In England, an individual who is arrested can be subjected to genetic fingerprinting, which opens the door to a multitude of people.
Once again I am trying to understand how the motive of a crime perpetrated in the name of a political ideology is more acceptable than another crime committed for purely personal reasons.
Ms Parizeau: I did not say it was more acceptable, but that the final use was different. I have questions about the proportionality of witnesses. Let me be clear here: I do not want to compare the nature of crimes. To my mind, they are all crimes. I am talking about the means we will using and controls that we will implement.
Senator Joyal: In the same vein, access to the database or control over the access to the database is as important for an individual found guilty of a crime for his personal profit as for the one found guilty of a crime of international terrorism. Control over access to the database must be just as strict in one case as in the other.
Why is Canada suddenly so concerned with its security? Is Canada not more vulnerable than the United States? Could that be one of the reasons? I am not saying it is. You know that we have a type of society that is different from American society. Are we not a more vulnerable society? When you think about how one can immigrate to Canada and become a citizen, our laws are more flexible than American laws.
One can think of border security in Canada. If one conducted a comparative analysis of both societies, couldn't one come to the conclusion that Canada is more vulnerable than the United States? What could justify extending the law to so-called political crimes?
Ms Parizeau: The vulnerability hypothesis did not really occur to me. To my mind, the question can not be put that way. There are other unanswered questions that concern me. it is up to the political level to explain the purposes pursued through such a broad extension of national security. I was asking a question rather than making a statement. I did ask myself about border security, about this sort of dominant ideology of the security syndrome, namely that at the border, there is an attempt to tighten domestic security. And I understand that completely.
At the same time, I am surprised to see that crime rates in the United States are higher than those in Canada. Why should we have a more extensive law, with broader powers, than the Americans? I am raising those questions; they are of a political nature. I am not in a position to answer them.
[English]
The Chairman: May I interject here and ask that we look at clause 17, parts (a) and (b). In the case of a secondary designated offence -- and I am paraphrasing here -- the court may make an order authorizing the taking of such samples if the court is satisfied that it is in the best interests of the administration of justice to so do.
It is only obligatory for the first list of offences. For the secondary list of offences, the operative word is "may," if the court is satisfied.
Some of the offences listed under the secondary offence designation are offences covered by international treaties and agreements. I have no idea whether the United States has signed any of those treaties or agreements.
Senator Joyal: Thank you for that input, Madam Chairman.
[Translation]
I would like to get back to the scope of the bill and in particular clauses 6.1 and 6.2 as well as clause 6.6, that states that no person who receives a DNA profile for entry in the DNA data bank shall use it or allow it to be used other than for the purposes of the administration of this Act. To your mind, is this limit to potential use sufficient to limit the possibility of its being used for purposes other than those provided for under the legislation?
In other words, since you have referred to a possible drift, in your opinion -- I am asking you a question of a legal nature that may not be the approach that you advocate -- does this not limit seem to you sufficient to capture what we are all trying to achieve, that is a balance between the rights of individuals, the protection of privacy and the need for the State to intervene in order to protect individuals and the public?
Ms Parizeau: The choice of markers remains in the hands of scientists. Let us take a hypothetical situation where medicine succeeds in identifying markers that can be associated with certain types of aggressive behaviour. Are we going to take that as something that will be included in the DNA identification or not? What I am trying to highlight is that from a scientific standpoint, it is very easy to find some justification for using this information.
Senator Nolin: That is why Senator Joyal's question is so fundamental. We want to know if what is written in this bill will protect us from that, because we do not want that to happen.
Ms Parizeau: I am not a lawyer, so I cannot answer your question. All I know is that if we are not more specific in the wording of the bill regarding research, usage, indicators, we are not being specific at all. If we have to be specific, why do we not do so in matters of research, in matters of markers for health care? I would like to insist on clause 9, on the fact that timing is indefinite.
When we work on research in ethics committees and we have protocols for genetic research, as members of research ethics committees, we always ask the scientists how long they will keep samples, what they will do with them and what security precautions will be used. We are very specific in regulating usage and time. If you leave the door open indefinitely regarding the use of the samples, there is absolutely no doubt that someone who went to the trouble of collecting the data will want to keep it as long as possible. You are not including a mechanism that would allow this to be limited in time or that could be verified. With regard to the Commissioner, I find he is being given an enormous amount of latitude. He is both a judge and a concerned party and it is in his interest to keep all the data.
Therefore, in my opinion, what is missing is an external mechanism that can control both the management of the data base and the use made of it. To my mind, there is a problem of mechanism and of control that could be much more specific. I did not make my presentation on this, but I believe that if there was an attempt to be more specific, I would personally favour that.
[English]
Senator Bryden: I have a response to Mr. Bridge's concern in relation to a match and a near-miss. I believe that the bill attempts to exclude the possibility of the communication of a near-miss.
It is my reading of clauses 6(1)(a) and (b) that specific information is permitted to be communicated after a DNA profile is received and compared. This is true whether the DNA profile is already contained in the data bank, and includes any information other than the DNA profile itself that is contained in the data bank in relation to that DNA profile. The latter part, I think, is related to the identifier.
I take it that clause 6(1) means that there is no right under this bill for the communication of any other information. They cannot communicate that they do not have a match, but that they do have one that is close. It must either be "Yes, there is a match," or, "No, there is no match."
I put that together with clauses 6(6) and 6(7):
(6) No person who receives a DNA profile for entry in the DNA data bank shall use it or allow it to be used other than for the purposes of the administration of this Act.
(7) No person shall, except in accordance with this section, communicate or allow to be communicated a DNA profile that is contained in the DNA data bank or information that is referred to in subsection (1).
It is my interpretation subclause 6(7) would block them from saying, "However, we do have a DNA profile that is close." Whether that is the case or not, I do not know.
The other point I would make is that if members of the scientific community determine that there are markers in the profile that are identifiable -- code-able, I think is the word -- that research would likely immediately become the subject of scientific debate, would it not? Would someone not write a paper on this? Would someone not be involved in a seminar on this so that it would become public knowledge that this bar code, which was limited to identification only, is now also believed also to provide medical information?
Mr. Bridge: I will answer your questions in order. First, you talked about the limitations. If that wording is sufficient to make it either a "Yes" or "No" answer, then I have no problem with it.
If you have someone poring over a data base of numbers and saying, "This is a near miss. Perhaps you should look at somebody else," then that is unacceptable. It is the mechanism by which someone is constrained to either a "Yes" or "No" answer. I have no problem with that if the only option is either a "Yes" or "No" answer.
In relation to the actual nature of the profile, upon testing the various genetic markers, they will then be coded into numbers. At any one of these markers you have two copies of each chromosome and, with that, the possibility of two different numbers. Let us say that out of the numbers one to 10 you might be a 2-8, I might be a 3-7, and the chairman might be something else. When you have the permutation of all these different choices of two out of 10, or 6, or 15 different numbers compiled together, it becomes more or less unique.
Let us return to what you said about whether or not someone would have published something on this. No one currently knows whether are not those numbers are coded, so nothing could have been published on that.
We have a precedent with that with the gene called Apo E. It was tested for cardiovascular purposes and now one of those results happens to be predictive of Alzheimer's disease. That is why my preference is to stay away from identified genes that are functional units and to go with what is called anonymous DNA, which has no known function.
I wish to stress that it is not a great risk, but the potential is there. If this scenario does occur, we must consider whether or not we can place some sort of safeguard measures on it.
Senator Bryden: Let us suppose that someone discovers that there is something identifiable which relates to a predisposition. Would it not be a scientist who would discover that?
Mr. Bridge: Yes, and it would be published when it happens.
Senator Bryden: That is my point. He would not be likely to hide his light under a bushel -- he would want to tell the world about this discovery. Would that not then become the subject of public debate in the community?
Mr. Bridge: Yes, it would.
Senator Bryden: I raise that because as soon as that happens, every court case that depends on DNA will have that argument presented to the court the next day. Public debate would then draw the attention of the courts, defence counsel and parliamentarians in order to make a correction.
The Chairman: Mr. Bridge, would that not mean that DNA that is numbered, -- let us say No. 3 on the ID bar code -- could not be connected with the DNA for a particular trait such as the trait that would lead to Alzheimer's disease? That is to say, the numbering would be different?
Mr. Bridge: The numbering is based upon studying the population. The research where the medical connection is made will be done on the general population. If it happens that people who have a profile in the data base share that characteristic, then the extension of the population data applies to them.
The Chairman: Can they be connected, though?
Mr. Bridge: That is the issue. If the profile is restricted to a "Yes" or "No" reply to the question, "Is there a match or not", and if it is never used for any other purpose, then it is not an issue. However, the keeper of the profile potentially knows something. That is to say, he will know that this person will get something and this one will get something else. The profiler may not be able to match the profile to a name, however.
The point in raising this is to establish safeguard mechanisms so that, regardless of the coding system for these numbers, they cannot be traced back to a specific individual without a legitimate court-authorized application asking, "Is this profile in the data bank?"
If the profile with a No. 3 is contained in the data bank, and someone answers "Yes", then you have said that "Yes". That is to say, this person has that characteristic, and you now know something about that individual. Later, it might be perfectly legitimate -- that is, if you have tested 10 of these variants -- to delete one and say, "Is the profile of nine of these in the data bank?" You would then stop asking about that one. That is the sort of fine-tuning to which I referred earlier.
I am not saying that you should not do the test at all, but is there a mechanism to remove one of them from your question, for example?
Senator Bryden: Ms Parizeau, I am interested in knowing whether it is legitimate to single out the comparison between Canada's protection of human rights and liberties vis-à-vis this situation and compare it with the U.S. in total isolation. I am not talking legally here, but philosophically. We are comparing this particular approach to the investigation of crime and some infringement on the rights of individuals in Canada.
Canada may be more protective of human rights in this particular regard, but then there is our neighbour to the south. A number of American states still have capital punishment, which infringes rather dramatically on human liberties, and states encourage citizens to carry concealed weapons in order to protect their liberties. By comparison, in Canada there is strict gun control, and capital punishment is prohibited.
Without taking the entire milieu of the difference between our two countries from a human rights and civil liberties point of view into consideration, is it fair to compare them across the board, and to designate the U.S. as being far more protective of human rights and liberties in this regard than Canada?
[Translation]
Ms Parizeau: I only the use the American legislation as a point of comparison between two similar things. I did not make a general judgment of the freedoms, the rights and the protection of privacy of individuals overall, I simply drew a comparison between comparable elements, taking into account what I knew of American law.
I am not making a sweeping judgment, but the Americans were more cautious than we are being. It is true that they did this seven years ago, but nonetheless, caution is justified for us as well. it is more a matter of limiting usage of a tool that will be subject to extraordinary developments in the coming years. Let us go step by step, because this is not carved in stone.
[English]
Senator Bryden: If a similar comparison had been made with the United Kingdom, would it be fair to say that Canada's position at this stage would be somewhere between that of the United Kingdom and the United States?
[Translation]
Ms Parizeau: I am not familiar with the specifics of the British law, but obviously the political context of Great Britain determined the nature of the legislation.
So once again, it would be difficult to compare comparables, for political reasons. The Irish terrorism experience in England was, to my mind, the determining factor in the decision to extend the legislation. Therefore, the comparison would not be valid.
[English]
Senator Bryden: I do not know that that is the reason.
You referred to terrorism, and that leads me to my last questions. The United States does not provide data banking for terrorist activities. You indicate that Canada has gone beyond that, and that that is what we are doing. Which clauses are you referring to as the terrorism sections in Canada? Are you referring to the list of offences that says piracy is a reason -- the secondary designated offences?
Ms Parizeau: Yes.
The Chairman: The first five.
Senator Bryden: There is no reference in there to acts of terrorism. It is on page 12, if you are looking at the bill -- piratical acts, hijacking, and endangering aircraft or airports. Is that what you are basing it on?
Ms Parizeau: Yes.
Senator Bryden: Surely these actions can occur for reasons other than terrorism.
[Translation]
Ms Parizeau: That depends on what you include in the definition of terrorism.
[English]
Senator Bryden: Believe me, I have just spent a long time trying to determine that. We will have a report out very soon.
One of the usual definitions is that it is for acts of violence for the overthrow of a state, or certainly for the furtherance of political purposes. While these acts may be used for that purpose, they also can be used for the purposes of extortion or organized crime. They are not exclusive to terrorism.
You indicated that the DNA profiling legislation in the U.S. is approximately seven years old. The U.S. position in relation to terrorism is probably evolving as we speak. They have passed legislation dealing with terrorism as a special type of crime. Are you aware whether they have included DNA profiling under that sort of legislation?
[Translation]
Ms Parizeau: No, I do not want to be that specific.
[English]
Senator Bryden: Much of this is done by presidential directive, which is something we do not have.
You make a distinction between infringement on human rights for state security, and for personal security or security of the citizen. I put it to you that it is very difficult to make the distinction between state security and personal security in a situation like, for example, the release of sarin gas in the Tokyo subway. If it had been successful, it would have killed thousands of people, even though it was done as a terrorist attack against the security of the state. The Oklahoma bombing is another example. Where do you draw the line?
[Translation]
Ms Parizeau: I do not want to get into polemics about the notion of terrorism. I simply tried to demonstrate that there were two objectives in the legislation and two ways of justifying the use of DNA testing.
The two end uses can be justified in and of themselves. I was clear in my presentation: I believe that public security, like national security, is self-justifying. Once again, it is a matter of knowing whether the end justifies the means when dealing with national security given the experience of the United States and of England.
What surprises me is that when this tool is used, it is to fight against international or domestic terrorism. There are currently international agreements between western countries regarding border security. I believe we must be aware that this bill opens up the possibility of the use of this DNA test for national security purposes. That is the point I simply wanted to raise, I did not make a statement about it one way or the other.
[English]
Senator Bryden: Are you basing that on the fact that piratical acts, hijacking, and endangering the safety of a airport are included in the bill?
[Translation]
Ms Parizeau: When I see the list of secondary designated offences, I am impressed by the fact that when you look at them one after the other, you can see an obvious link with various forms of international terrorism. That is all.
[English]
Senator Bryden: I guess I have difficulty making that link in the list along with child pornography and indecent acts.
[Translation]
Senator Pépin: I disagree when you say that if someone misuses this information, be it the Crown prosecutor or the defence attorney, someone would say that he has no right to use that information. I believe the police is always acting properly when it gathers information, but the collection of that information is often broader than the law allows. I have concerns regarding the possibility of collecting this information and how it can be stored and used.
Mr. Bridge, can you give us examples of similar cases? Right now, do we often see this kind of near-miss case? Is there a relatively high percentage of such cases?
[English]
Mr. Bridge: I do not think it is a high percentage. My personal experience comes not from forensic work, but from paternity testing. I am used to looking at profiles for the purpose of saying, "This man is probably the father of this child," or, "This man is excluded as the father of the child."
A near miss under those circumstances would mean that he is not the biological father of the child, but that the likely father is a close male relative of his. That does not happen often, but obviously, getting back to the idea of a crime, you would have to have an appropriate relative present, so that one gets accused, and the other one actually did it. It would have to be, say, two brothers. It would be useful in sorting out which one did it, but the concern is a bit different. I am thinking more of the data base of crime scene samples, something that has been stored for some length of time.
Let us say there is an investigation, and one particular individual is suspected to be the perpetrator. All of the evidence is focusing on that individual and then, when the profile comes, it does not match perfectly. If there is a near miss, then all of a sudden there is evidence against someone else -- probably an anonymous relative. Prior to that near miss, there was no evidence against that person whatsoever.
My perspective concerns solving the crime and seeing justice done, so I do not have a problem with that, if that is what is intended, but I do not think that is what is intended. I think what is intended is a "yes" or "no" answer.
Senator Buchanan: Senator Joyal mentioned something we discussed over the last number of days with the Canadian Police Association, the Canadian Association of Chiefs of Police and others. That is, the difference between legislation in the U.K. and many of the states on when there can be an order authorizing the taking of DNA samples.
Under clause 17 of this bill, the order authorizing the taking of such samples can only be made after the person has been convicted. The Canadian Association of Chiefs of Police clearly indicated that they would prefer the sample be taken after a charge has been laid. They did not want to delay this legislation, however, so they will be satisfied if an amendment is made later. The Canadian Police Association also wants the sample to be taken after a person has been charged, but they would like the amendment right away.
Do you have an opinion on that?
Mr. Bridge: I was under the impression that samples could be taken for the purposes of investigation now.
Senator Buchanan: That is only after a provincial court order has been issued by a provincial court judge under section 487.05 of the Criminal Code. The police chiefs, the police association and others have asked that, without this order under this clause I just mentioned, they be able to take DNA samples after a charge has been laid, and not have to wait until there is a conviction.
To repeat, the Canadian Association of Chiefs of Police wants that, but they do not want to interfere with the immediate passage of the bill. The CPA, however, wants the bill amended now.
Senator Nolin: The other option they suggested was to seek a reference to the Supreme Court.
Senator Buchanan: That is right.
We heard about an interesting case last night. A Massachusetts superior court judge has barred the state police from demanding DNA samples from prisoners. It is one of the first U.S. court decisions to assert privacy rights in stopping DNA data banking. He, of course, says that it violates the privacy guaranteed under the Fourth Amendment.
We have heard a lot of concern that this bill is going to be subject to the Supreme Court under the Charter of Rights and Freedoms. I suppose it may not matter whether the samples are ordered to be taken after a charge has been laid or after a conviction. Everyone has indicated there is no doubt that a case will come before the Supreme Court under the Charter on this.
Senator Grafstein: It would be useful for us to get the case that you referred to.
Senator Buchanan: I have it here.
Senator Grafstein: We have a newspaper report of the case. However, it would be useful for us to see the whole case, because we have to take a look at the facts of that case in order to see what the general application is.
Senator Buchanan: I thought Mr. Bridge would be interested.
I still want an opinion on this question.
The Chairman: We will get an opinion.
Senator Joyal: I just want to say, for the benefit of my colleagues, that this morning my office contacted the office of the American senator whose name appears in this article, and his office has agreed to forward a copy of the judgment to me in the next few hours. It is a lengthy judgment, and they could not fax it immediately, but we will receive it shortly and share it with honourable senators.
The Chairman: I will see that every senator gets it.
Senator Buchanan: Might I now have your opinion?
Ms Parizeau: Could you pose your question again, please, senator?
Senator Buchanan: Under this bill, a provincial court judge, on an ex parte application, may grant an order for a DNA sample to be taken, but if that does not occur, the only way under this bill that the DNA sample can be taken is by an order after a first conviction. In the U.K., as I understand it, it can be taken after an arrest or after a charge.
Senator Grafstein: On arrest.
Senator Buchanan: Our Association of Chiefs of Police and the Canadian Police Association are not asking for it to be taken on arrest. They are asking that it be taken after a charge has been laid. That cannot occur under this bill until after a first conviction.
Do you believe there should be an order that it be taken after a charge is laid, or ought we to wait until a conviction has been entered?
[Translation]
Ms Parizeau: I think I was quite clear in saying that the later the better. We must provide a maximum number of guarantees here. The question that you are asking is quite technical and I do not feel capable of answering it. Obviously, it is only when there is a guilty finding that we should have access to this kind of technique. That is a very personal opinion. It is consistent with what I said. Obviously, police forces will want to intervene as early as possible in the procedure. They are doing their job; that is normal.
The issue of protecting the privacy of individuals is fundamental. We must protect it by being extremely strict about the access to this technology.
[English]
Senator Buchanan: That certainly does follow the general principle that you enunciated this morning.
What do you think, Mr. Bridge?
Mr. Bridge: First, this is a personal opinion, and not the opinion of the college.
Where clause 4 talks about principles, it talks about early detection, arrest and conviction of offenders. I think DNA testing is a great tool in early detection and prosecution. It is also the greatest friend of someone who is wrongfully accused. It is guaranteed to get them off.
Senator Buchanan: We have a divided opinion, Madam Chairman.
The Chairman: You may finish, Mr. Bridge.
Mr. Bridge: I would be personally -- and I emphasize "personally" -- in favour of DNA testing being done earlier rather than later.
Senator Moore: Mr. Bridge, yesterday we were given a copy of the Arp case. Is that the case to which you referred earlier?
Mr. Bridge: No, senator.
Senator Moore: In that situation, a crime was committed in 1989, samples were provided with consent, and were used almost 10 years later to prove that he was indeed the perpetrator of the crime.
What interested me was the evidence given by a forensic biology specialist employed by the RCMP forensic lab. In examining the specimens taken from the accused Arp, that biologist found there was a five-probe visual match, and went on to say that such a match is an extremely rare event to occur between unrelated individuals. She also said that this frequency of occurrence in the Canadian Caucasian population was less than 1 in 31 billion.
When you do a DNA analysis, can you determine a person's race?
Mr. Bridge: Usually not. You might be able to slightly modify probabilities of it, but the purpose of these tests is usually not to determine race.
Senator Moore: That may not be the purpose but can it be determined?
Mr. Bridge: You are talking about odds of 31 billion.
Senator Moore: I am just asking about all those little bars; does one of them indicate race?
Mr. Bridge: Not specifically, no. You might get odds saying that this is twice as likely to come from a Caucasian person as from an Oriental person, or maybe even 100 to 1. It certainly is a completely different order of magnitude to the primary purpose, however. It is not a satisfactory test for race.
Senator Moore: It is not?
Mr. Bridge: No.
Senator Moore: This specialist quoted a figure of 1 in 31 billion. Do such figures exist for other races?
Mr. Bridge: Yes.
Senator Moore: They do?
Mr. Bridge: Without knowing the specific profile.First of all let me just clarify the very explicit wording. I said, "It is not a satisfactory test for race," not, "There is not a satisfactory test." Other systems might better distinguish between different races, but the ones used for profiling for identity purpose, as I said earlier, usually tend to be variable in all races, so there will be minor differences.
That is not to say that you could not make a completely different test that might say much more satisfactorily that this is a Caucasian sample, this is an Oriental sample, or something like that.
Senator Moore: Could such a test also determine ethnicity?
Mr. Bridge: Tests could be devised based upon specific characteristics in certain populations. They could give a greater probability that that sample came from a particular race or ethnic group and so forth, however, they are not the tests that we are talking about in forensic profiling.
Senator Moore: When you do a forensic profile, as I understand it, the idea is to use markers that are not coded so as to give information other than that which is needed to provide the identification. It is a sort of sterile coding, so it does not give individual information. Is that correct?
Mr. Bridge: There are two different terms for coding. "Coding genes" means that they actually make a protein that does something. I was talking earlier about the difference between using genes of known function -- coding genes -- versus pieces of DNA that have no known function -- what we call anonymous DNA.
Senator Moore: Those are the ones that we would use for the latter?
Mr. Bridge: The forensic profile contains a mix of both types.
Senator Moore: When you do an analysis, do you get more information than you need? That is, for comparative purposes in trying to eliminate or determine suspects?
Mr. Bridge: When you do the profile, you obviously try to make the test as accurate as possible. Usually, you might get satisfactory odds of a match based on three or four or five markers, but instead of doing just the minimum standards you perhaps do 10.
Senator Moore: Does any test result give more information than what is needed to do a comparison?
Mr. Bridge: I am not quite clear on your question. All it does is increase the accuracy of the match, or reduce the possibility of a false match. When you are saying the odds of finding this particular profile in the Caucasian population is 1 in 30 billion, that is presumably better than doing fewer tests and saying it is 1 in 30 million or 1 in 30,000.
It is not giving any unnecessary information in that, once you have gone beyond a certain limit, you are now providing gratuitous extras.
Senator Moore: Perhaps I can try to make myself more clear.
You spoke earlier about the example of a test result showing that a person, because of genetic reasons, might become ill with Alzheimer's. Would that information come from every test, or would you have to do a specific test to determine that?
Mr. Bridge: That would come from a specific test. The problem was that this specific test had originally been performed on people when looking at lipids in the blood for cardiovascular reasons. The people had actually been tested for cardiovascular purposes, to evaluate the risk of heart problems.
Senator Moore: This other trait showed up, however.
Mr. Bridge: Yes, this other characteristic was later discovered. The problem is that they now know what their particular code is -- or their physicians do, or it is in the medical record. This is a predictive factor. That does not come from every test.
Senator Moore: I thought that, when a test was done, a range of pieces of information came, but we only used specific bits of information for these forensic analysis applications. My concern was what happened to all the extra stuff, and who has that information. You say that does not happen.
Mr. Bridge: No, you are using the entire profile. There is no extra stuff.
Senator Moore: There is no information left about that someone could use inappropriately?
Mr. Bridge: No, all of the information goes into the profile.
Senator Grafstein: I wish to return to a topic that I raised in the first round of questions, and test the witnesses about how this might work.
We have been apprised, because of the concerns raised by both witnesses, that the concern is not only the future possibilities for the sample, but also the actual data ban itself.
We have also found that the curtailment of the utilization of the data bank lies essentially in the hands of the RCMP commissioner. The Privacy Commissioner would be the oversight mechanism on that. It is curious that there is a reference in the bill to the Privacy Act as it applies to international agreements, but not as it relates to the domestic use of the information.
Could you describe for me how we can meet the state's need to utilize this modern DNA technology, while at the same time satisfying ourselves that an independent group will ensure that the use of samples will not go beyond identification, which is the intent of this legislation?
Have you given any thought to how an independent advisory group might be structured, what its terms of reference might be, and how people might be appointed to it? Mr. Bridge mentioned that idea in his testimony.
If you are not able to do it now, but would prefer to think about it in the next few days, we would appreciate receiving any thoughts about that from either witness. We do share your concern about the possible abuse of the data bank and the limits thereof. That appears to be a general concern. To be fair, the drafters tried to curtail the reach of the data bank in the legislation by using a particular model. This is a cutting edge concern for the RCMP, and for us as well.
We would like some ideas about how we could structure such an advisory panel, so that it would be truly independent, and so that its mandate would act as a useful prophylactic, if you will, on abuse of the markers?
[Translation]
Ms Parizeau: I did not go that far when I considered this issue. I cannot give you practical elements. That appears to me to be quite an interesting potential solution. With regard to mechanisms, I am unable to answer your question precisely. I believe that the objective is completely necessary.
[English]
Mr. Bridge: I have considered this subject, but not at great length. My thoughts have been confined mostly to the scientific component a panel such as the one that I mentioned earlier. You would certainly require a population genetics person, or multiple people expert in understanding the DNA profiles and the mathematics involved in using them.
I would recommend a medical geneticist for the reasons I mentioned earlier, because he or she could alert the commissioner as to the fact that some additional function could be ascribed to one of these numbers.
I would also recommend lawyers and ethicists as watchdogs -- people who definitely do not like the police.
Senator Grafstein: I appreciate having that testimony on the record. I wish to thank both witnesses for such interesting and thought-provoking submissions. They have helped clarify a number of issues for me.
The Chairman: Thank you very much for appearing before us today. It has been an interesting and enlightening session.
The committee adjourned.