Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 30 - Evidence - June 7, 2007
OTTAWA, Thursday, June 7, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-18, to amend certain acts in relation to DNA identification, met this day at 10:56 a.m. to give consideration to the bill.
Senator Lorna Milne (Deputy Chairman) in the chair.
[English]
The Deputy Chairman: I welcome witnesses and members of the public who are with us today and those who are watching on television. We are here today to begin our study on Bill C-18, to amend certain acts in relation to DNA identification.
Bill C-18 was introduced in the House of Commons on June 8, 2006. It amends the Criminal Code, the DNA Identification Act, and the National Defence Act to facilitate the implementation of Bill C-13, which was given Royal Assent on May 19, 2005, but has, except for a few sections, not been declared in force. One notable feature of Bill C-13 is that it expanded the list of offences for which a DNA data bank order can be made.
To explain in detail what Bill C-18 will do, I am pleased to introduce the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada. Accompanying him is Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice, and Lieutenant-Colonel Jill Wry.
Welcome to the Senate.
Honourable senators, the minister can be here for an hour. He will begin with a statement and then answer questions. For the second hour we will hear from officials from the RCMP.
Minister Nicholson, you have the floor.
[Translation]
Hon. Robert Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Madam Deputy Chairman, I am pleased to be here today to discuss Bill C-18, An Act to amend certain Acts in relation to DNA identification.
[English]
This bill will be of great benefit to law enforcement in their efforts to apprehend criminals and to prosecutors in trying alleged offenders in the courts to determine guilt or innocence. Of course, the ultimate beneficiaries will be the Canadian people, as the increased use of DNA evidence will enhance public safety.
DNA analysis of crime scene samples and the use of DNA evidence in court, which was controversial 20 years ago, are now routine. I will not belabour the point with statistics on the impact that DNA has had on the justice system. Everyone is aware that DNA has exonerated many suspects who, in the past, might have been wrongfully convicted on the basis of circumstantial evidence. It has also led to many convictions of offenders who otherwise might never have come to the attention of the police.
The amendments to the Criminal Code and the DNA Identification Act that we are considering today are intended to make the operation of the National DNA Data Bank more efficient and to increase the number of profiles in the convicted offenders index and the crime scene index at the data bank.
DNA is invaluable to forensic science because no two people, except identical twins, share the same DNA profile. Each cell of a person's body has the same DNA from birth to death. A single hair or less than a drop of blood can yield a DNA result, and DNA is highly resistant to breakdown over time or even under harsh environmental conditions. The characteristics of DNA enable old as well as new crime scenes to yield results from biological evidence that match a DNA profile exclusive to a single person.
The data bank assists police investigations by constantly cross-matching profiles in the Convicted Offender Index and the Crime Scene Index.
The National DNA Data Bank updates the statistics on its website every two weeks. I understand that the data bank is now averaging 50 matches every week between crime scene DNA profiles and the profiles of convicted offenders, and 10 matches per week between crime scene profiles.
Honourable senators will be aware that Bill C-18 is the fruit of the work done by federal, provincial and territorial officials who were preparing for the coming into force of all the provisions of former Bill C-13 from the last Parliament. The most important provisions of former Bill C-13 that are not in force are the following: allowing the courts to make DNA data bank orders against a person who has been found "not criminally responsible on account of mental disorder"; adding Internet luring of a child, uttering threats, criminal harassment and criminal organization offences to the list of designated offences; moving robbery and break and enter into a dwelling house and child-pornography-related offences from the list of secondary designated offences to the list of primary designated offences; and creating a new subcategory of the primary designated offence list for 16 extremely violent offences. For these offences, the courts will have no discretion whatsoever and must make the order. Also, another provision is the definition of "secondary designated offences" to include all offences that are punishable by imprisonment for five or more years. However, these offences must be prosecuted by indictment if the court is to make a DNA data bank order.
Bill C-18 makes many changes in the drafting of the DNA amendments in the former Bill C-13 to make their intent clearer, including creating new forms for use in the courts. It also makes some significant improvements. For example, Bill C-18 proposes to permit a retroactive hearing where the person is still under sentence for one of the defined offences, rather than requiring that the person is serving a sentence of two years or more. There are a few cases of persons who, prior to June 30, 2000, received multiple consecutive sentences for various offences, including some of the offences that make an offender eligible for retroactive sampling and the persons are still under sentence. Although the court clearly considered them to be serious offenders, it did not impose a sentence of two years or more for any of the relevant offences.
This bill will add attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions. These serious offences indicate an elevated risk of reoffending and are punishable by life imprisonment.
We will make it an offence to fail to appear for a DNA sampling. It is expected that having a specific offence will increase compliance with DNA data bank orders. We will allow an application for a DNA order to be made by the Crown within 90 days after the sentence is pronounced. This provision would permit the Crown to review the files and make an application where the matter was simply missed.
We will make it possible to execute a warrant issued when a person does not appear for DNA sampling anywhere in Canada, and allow the law enforcement agency authorized to take the sample to authorize another to do it on their behalf. It will provide that, after Bill C-13 and Bill C-18 come into force, where a person is convicted of an offence that was committed prior to the bill coming into force, the new provisions apply.
It is not possible to provide precise numbers as to the effect these changes will have on the number of samples being submitted to the National DNA Data Bank for analysis and uploading to the Convicted Offender Index because much depends on how the prosecution makes use of the new provisions and how the courts exercise their discretion.
My department, the Department of Public Safety and the RCMP will work with the provinces to assist them in preparing for the legislation coming into force and to encourage them to make full use of the new tools that this legislation will give them. I expect we will have the full cooperation of the provinces who, I believe, eagerly await this legislation.
As for the Crime Scene Index, the legislation will make many more offences into designated offences so that DNA profiles found at those crime scenes can be uploaded to the National DNA Data Bank. However, we do not know how many more samples will be submitted. That is much more a question of the resources available to the police to attend at crime scenes to look for DNA evidence and the capacity of the laboratories to analyze the samples. Nevertheless, it is clear that this legislation can only lead to more profiles in the Convicted Offender Index and the Crime Scene Index which will, in turn, result in many more matches.
That concludes my remarks. I would be pleased to respond to any questions.
The Deputy Chairman: Thank you, Mr. Minister.
Senator Nolin: The definitions of primary and secondary designated offences are being changed once again by this bill. It appears that the combined effect of Bill C-13 and Bill C-18 will move some offences from one list. As you mentioned, child pornography is one. Is it possible to provide the committee with an unofficial or administrative list or what the new section 487.04 will look like after Bill C-18 to help us evaluate Bill C-18?
Mr. Nicholson: That request is reasonable. As you say, there are a number of different categories between primary and secondary designated offences. Even within primary designated offences, there is a subcategory that I indicated for which the courts will have no discretion whatsoever with respect to ordering a sample to be taken and submitted.
That being said, we would be pleased to give you a breakdown, so in your deliberations it should be clearer.
Senator Nolin: I have another question that concerns the backlog. I know you are the Minister of Justice. You are in charge of providing the act and ensuring the act properly exists. Probably another colleague of yours is responsible for the backlog, but you are here this morning. I am sure you read the May report from the Auditor General with respect to the backlog. When we look at the intent and the wording of Bill C-18 and Bill C-13, the backlog will probably increase.
First, is there a backlog?
Mr. Nicholson: Senator, you are correct. It would probably be more appropriate for my colleague, the Minister of Public Safety, to comment on that. Notwithstanding that, it is my understanding that immediately following my testimony you will have representatives of the Royal Canadian Mounted Police who will be able to address that issue. I am pleased that, with the coming into force of Bill C-13 and the passage of this particular bill, additional resources will be available. It is important that we all recognize that this is an area in which there will be greater use of, and demands on, the resources of the data bank, so it is reasonable to agree with providing more resources. I hear what you say, and, of course, we want to move forward and expedite the process.
Senator Nolin: At second reading, all of us in the Senate had a concern. It is okay to refine and produce good laws, but, at the other end of the spectrum, we want police officers and officials to be able to perform in the jurisdictions we provide them. That is key.
Mr. Nicholson: I think so and that is a reasonable comment. The use of DNA has been a huge step forward in law enforcement. A number of individuals have been exonerated by DNA evidence and of course DNA matches have led to convictions. Any process put in place that ensures that our system provides justice to everyone involved is a step in the right direction. This is a great step forward and I am glad to be a part of it.
Senator Baker: In your introductory statement, minister, you mentioned a great many sections of Bill C-13 that were not proclaimed.
Mr. Nicholson: Yes.
Senator Baker: Can you provide a reason why you did not proclaim these sections of Bill C-13.
Mr. Nicholson: It became apparent the former bill needed some modifications. There were discussions between federal, provincial and territorial officials. As sometimes happens, and this is not a criticism of the previous bill, but it was believed there were some oversights, and modifications were needed. The bills could be characterized correctly as complementary to each other. I will ask Mr. Yost to provide further detail on that.
Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice Canada: Bill C-13 was substantially modified in committee prior to being passed by the House, following extensive discussions. Unfortunately, there was not the usual amount of time to dot the i's, cross the t's, and consult with provincial partners, et cetera. There was concern the government might fall on the budget bill, and the bill went through the House and the Senate.
When we began discussions with our provincial colleagues, problems were identified. Since it would take time to prepare to bring in the legislation due to issues of capacity and others, which you will discuss with the RCMP I am certain, we felt we had some time. Since the bill had recently been through the House and the Senate, a bill to correct it would move quickly. The previous government brought in Bill C-72. That bill died on the Order Paper. We took advantage of the election period and had a two-day meeting with provincial colleagues, police officers and corrections and court officials. We reviewed Bill C-13 and Bill C-72 with a fine-tooth comb. We came up with more changes to get it right this time. We are sure this bill is right but we will find out as it works its way through the process. Everyone involved was pleased with the product. The decision was made by this government: Fix it, get it right, and then bring it into force.
That is the history of this bill.
Senator Baker: I understand that. I knew that answer prior to asking the question. The point being that committees sometimes in the House of Commons and the Senate make changes that the Department of Justice feel, are not practical, feasible or doable in the circumstances, and are perhaps contrary to law in certain cases.
I suppose the bottom line is that the government or the Department of Justice did not really like the amendments that were instituted in committee and therefore did not proclaim sections of the act.
I notice you have changed certain wording from the original act. You have introduced a strange phrase, "as soon as feasible;" an interesting phrase. We are used to seeing, as soon as practicable, as soon as possible in French, but "as soon as feasible" is perhaps something you might want to comment on.
Mr. Yost: I am sure that question is not addressed to the minister. The entire legislative drafting section of the Department of Justice has wrestled with the appropriate wording. I also work on impaired driving bills and there are discussions about "provide forthwith," and what that phrase is, as compared to "as soon as practicable" and "as soon as feasible."
"As soon as feasible" is the current preferred wording of the legislative drafters. It provides more flexibility than "practicable." It is intended to bring into evidence, if necessary, that Herculean efforts might get them there, and that might have been "practicable." However, in the real world, on the ground, on a Friday night, in a busy station, "feasible" gives a bit more room. That is the intention of the wording and I suspect in due course the courts will tell us whether it achieves our goal.
The Deputy Chairman: Honourable senators, we have the minister only for another three quarters of an hour, since he came a bit late. Perhaps we could call the department people back another time and direct our questions to the minister.
Senator Baker: This change in the legislation is a major one, Madam Chair. Will Mr. Yost remain after the minister leaves or will he vacate his chair when the minister leaves?
Mr. Yost: My expectation was that I would remain, but sit back there and see how my friends in the RCMP do as witnesses.
Senator Baker: Is it possible, Madam Chairman, since we will deal with important wordage in the bill, that Mr. Yost could perhaps stay, if need be. Does Mr. Yost believe the RCMP could answer that question, or address those types of questions?
Mr. Yost: It is a legislative drafting issue, which I certainly would not address to the RCMP officials that are coming. They are biologists, et cetera, and will talk to you about the laboratories.
Unfortunately the RCMP's legal counsel in this matter, David Bird, is currently testifying at another committee. He is involved in the witness protection program. If you wish us to come back sometime when Mr. Bird is available, we will.
Senator Baker: I have one brief final question Minister. What happened to the five-year review of the DNA legislation? Have you had a look at this committee's recommendation concerning the five-year review of the National Defence Act, as it relates to the review by Justice Lamer. Justice Lamer's recommendations were not taken into account by the government as it relates to important observations regarding courts marshal addressed in this way, and the way judges are appointed, holding office for only five years. This bill does not meet the criteria of an impartial tribunal under our law. Will the government review the recommendations of this committee relevant to that matter?
Mr. Nicholson: We are always pleased to look at any recommendations that come from this committee. Any that come from you have always been taken seriously. I have known Senator Baker for many years, so I feel compelled to say that.
Senator Baker: As usual, minister, you are doing a great job. Unfortunately, the rest of the government is not.
Mr. Nicholson: Thank goodness for small presents, then.
In any case, in terms of this particular bill, I ask Lieutenant-Colonel Wry to comment with respect to the National Defence components. Getting Bill C-13 right is a major step forward, in my opinion. As you know, we tried in the last Parliament to bring in amendments with Bill C-72. In a sense, the bill goes beyond partisan politics in terms of trying to refine the system.
Is this the last word? If we come back 15 or 20 years from now, there may be more developments in the science. One challenge in the Criminal Code is to try constantly to stay ahead of the changes in technology.
I found your comments interesting with respect to the legislative drafting. That, too, as you know, has changed over the years. You would remember, senator, 20 years ago when you and I were in the House of Commons, that the state of the law with respect to the offence of arson was that if you set fire to your car, that was not arson, but if you set fire to a stack of vegetables, it was. We adopted that function of the Criminal Code in the 19th century. Part of our challenge, on a continuing basis, is to look at the provisions of the Criminal Code to see if they match the realities of society and, as I indicated briefly, to ensure that the science is updated as well.
With respect to a recommendation that you or your committee would make, the government is always receptive to that. Ultimately, we have the same goal, which is to ensure that we have an effective and up-to-date Criminal Code.
I know you had some comments specifically with respect to national defence, which probably would be more properly directed to the Minister of National Defence. That being said, components of this bill apply to the criminal justice system within national defence, and Lieutenant-Colonel Wry may wish to make comments on that at this time.
Lieutenant-Colonel Jill D. Wry, Director of Law/Military Justice and Policy and Research, Office of the Judge Advocate General: Senator Baker, to respond to your comments specifically as much as I am able at this time, I draw to your attention that the amendments in this bill relevant to the National Defence Act are there because our military justice system also has a regime to allow the taking of DNA samples. Insofar as possible, recognizing that there are differences between the military justice system and the criminal justice system, we try to keep our systems in line and mirror changes that will occur in the DNA scheme, if I can call it that, as provided for in the criminal justice system. The amendments that you see in the bill today, senators, are consequential to the amendments made to the Criminal Code. The amendments allow the National Defence Act to stay in step with the updates and changes in the DNA regime, as exists under the criminal justice system.
Senator Baker, with regard to your comments about former Mr. Justice Lamer's recommendations and review of the military justice system, I remind you that the government's response to the recommendations made in that report have been put before Parliament in the form of Bill C-7. They are currently before Parliament. The response to his recommendations is contained in that piece of legislation.
The Deputy Chairman: Senator Baker, if you have any further questions, I will put you on a second round.
For the benefit of the record, I will point out that I believe Colonel Wry is the Judge Advocate General.
LCol. Wry: I am the Director of Law, Military Justice Policy and Research within the office of the Judge Advocate General, but I thank you for the promotion.
Senator Andreychuk: Minister, I have been around here a long time, although not as long as Senator Baker and you. When we started the DNA process, we were all learning what it meant: how the actual DNA would be taken, what it looked like, how it would be housed and how it would be protected. The concerns at that time, as I recall, were that DNA would be taken from people who may be charged but not convicted. That was a preoccupation. Another issue was privacy and the DNA being kept for the purposes designed in law and for no other purposes. The third concern was youth. We have a justice system that says youth are different from adults, so we had concerns about DNA taken from youth.
I would like to know your philosophy now, given the fact that we have had some years living with DNA. We are more comfortable with DNA. We know what it produces and what it does not. I am concerned about the philosophy. Are we still trying to ensure that the majority of the DNA comes from convicted people and not only those who are under some suspicion? That issue is separate and apart from obtaining DNA at the scenes of crime. The other question is privacy. Are the protocols in place? Are you satisfied with how DNA is kept and how it is utilized, as information within government systems and internationally? When we share dNA across borders, are we sure that it is kept with the same sort of limits? What about the youth situation?
Mr. Nicholson: You have covered a fair amount of territory there, senator. You will notice in this bill and the companion bill that goes with it that many of those concerns are shown to be of concern by reason of the way we differentiate between the offences, for the reason that you indicated. I indicated that there was a subcategory of the primary offences, of the most serious, most violent offences, within the Criminal Code. We do not give any discretion on those offences because the consequences are too great. If an individual, for instance, has been convicted of murder, we want to know. We want to know what that individual's DNA is to connect that individual to DNA taken from a crime scene, or connect that individual with other crimes that are in the system. By differentiating between the different levels of offences, whether they be secondary, primary, or this almost super category within the primary designated offences, we are taking into consideration and we are mindful of the concerns that you indicated.
Mr. Yost indicated to me, as you were making your comments, some of the specific safeguards that we have in place. In the briefings that I have had and my experience with this particular area, I am satisfied that we, as a country and individually, take the whole question of privacy and protection of information seriously and that we have in place safeguards that are as careful as anyone in the world.
Mr. Yost: This legislation is entirely within the scope of the original design of Parliament. We will still take DNA only from people who have been convicted, and pursuant to the authorization of a judge. The question of whether that should continue is something that the now delayed parliamentary review may wish to consider.
A number of countries collect it on a different basis. In most of the states, it is collected for all felonies and it is collected by the correctional service automatically. Other countries, and seven American states, take it at the stage of fingerprinting, which raises issues that we hope a parliamentary review will address.
The origin of Bill C-13 and Bill C-18 was a consultation by the Department of Justice in 2002 responding to serious concerns brought to our attention by the provinces. It was never intended that this legislation would replace the parliamentary review. Perhaps we were dreaming in technicolour at the time, but we thought, when consulting in 2002, that we would have these amendments in place before the parliamentary review started. It still appears that we will have them in place before the parliamentary review starts, but both will be later than planned.
With respect to privacy, the Supreme Court of Canada has commented twice most favourably upon the protections of privacy. You may wish to address questions on this issue to the RCMP, but my understanding is that in our system, the DNA sample arrives with the identifying information and the blood. They must have an identical fingerprint, and there is a bar code at the top. The DNA data bank receives only the one with the bar code and the fingerprint, and they conduct their analysis. They immediately send the identity to their identification service. When they look for a matching profile, they have no idea whatsoever who they are dealing with, so they cannot be accused of playing games.
You talked about international exchange. The biologists will give a better answer, but the analysis produces what looks like the readout from an electrocardiogram, and that analysis is put into numbers. If a foreign country asks us to do a search, or if we ask them to do a search — and there have been a couple hundred instances — only the numbers are run through a computer to see if a match can be found. There may be circumstances — and there were amendments to Bill C-13 — where issues are raised as to whether what is thought to be a match is in fact a match.
If 11 out of 13 numbers match, they will review the work of both sides. In those circumstances, under Bill C-13 — and this provision is currently in force — they can exchange the actual profile with domestic laboratories and check whether someone made a mistake.
This bill will allow us to do the same thing internationally. We will never send out bodily substances from which they can do further analysis. The requester will receive only the numbers at first. Later, they may obtain the printout to see whether a mistake has been made.
The Deputy Chairman: I am concerned about what this bill does with regard to sharing this information with other governments. If a request comes in from a foreign state, will they be given access to both the DNA profile and the personal information? I understand that under the first DNA bill, the information arising from the DNA profile was shared with foreign governments. I believe that there was testimony before the House of Commons committee that under this bill, the actual DNA profile will be shared with a foreign government.
Mr. Yost: The legislation, as originally passed by Parliament, allowed the DNA data bank to advise whether they had a match or not. Saying "no match" is important; that means that 130,000 people are excluded as suspects. The problem is that there are partial or moderate matches. That problem was addressed in Bill C-13, in which we came up with the procedure that allows the commissioner to share the profile with a laboratory so that they can decide among them, as scientists, whether they have a match. No identifying information whatsoever is sent out. They do not know who they are talking about yet; they send it out from the DNA data bank only to an RCMP forensic laboratory or to Ontario's or Quebec's laboratory. The scientists at both laboratories look at the profiles and decide whether they indeed have a match.
This bill corrects a mistake that we made. The legislation in force today says that if the commissioner is satisfied, the commissioner sends it out. The commissioner does not do that in Ontario and Quebec. The scientists look at it, and if they are satisfied that they have a match, they can ask for the identifying information.
I trust that you will hear from the RCMP, as was said in evidence on Bill C-13, that hundreds of matches have been found as a result of this exchange of information. Consequently, it is a useful tool. However, it is important that they narrow the number they send out by exchanging profiles.
The Deputy Chairman: I understand that well, Mr. Yost. My question is on the policy of sharing this information with foreign states. I understand that it is subject to an international agreement under the Privacy Act as well as an Interpol agreement. The Interpol agreement ensures that the receiving country agrees to abide by conditions we impose. What conditions does Canada impose?
Mr. Yost: I have seen the agreements and we commented on them. We insist they respect our privacy, et cetera, but I am not the right person to answer that. David Bird, who negotiated these agreements internationally, would be a far better person to provide the legal answer as to exactly what is in the Interpol agreement. It may have been modified since I last saw it, which is when it was first negotiated.
That is all I can tell you. I know that we do not send out the bodily substances, only the profiles.
Senator Fraser: To which foreign countries are we willing to send this information, however carefully sanitized it may be? There are countries that one would hesitate to send it to, I would think. Are there criteria? Is there an approved list?
Mr. Yost: My understanding is we that will send it to any country that has signed the Interpol agreement to respect our privacy. The practical reality is that the existing DNA data banks tend to be in countries belonging to the Organisation for Economic Cooperation and Development, OECD. Perhaps, you should ask the RCMP, but my understanding is that our exchanges have been overwhelmingly with the United States, given that Canadians and Americans cross the border, but also with the U.K. and Western Europe.
Senator Fraser: One would certainly be concerned if we were exchanging information that might be useful to countries whose judicial systems are not like our own.
Mr. Yost: We will have received the computer numbers from the requesting country. If we have matching computer numbers, we tell them who this person is. Presumably that person is still resident in Canada and cannot be extradited, et cetera.
We will provide that information to them. This is Mr. X convicted of such and such, last seen at Kingston Penitentiary and so on. That is all they will receive from us. They must have the match. We must have received a profile found at a crime scene.
I do not think the problem is only a DNA one. Not all members of Interpol have Canadian judicial standards. To determine how the RCMP handles that issue, perhaps you should ask Mr. Bird.
Senator Fraser: Perhaps we should have a list of the countries that are part of Interpol, because I do not know.
The Deputy Chairman: I have no idea either.
Senator Stratton: I want to address a policy issue. The United Kingdom requires someone charged under an indictable offence to give their DNA sample. We choose judicial discretion for that sample, for the purposes of protecting the individual. Have you considered, or did the government consider, the United Kingdom's method: Once you are charged with an indictable offence, they shall give a sample. Was that method discussed?
Mr. Nicholson: We undertook a review of legislative initiatives in this particular area, including the United Kingdom and other jurisdictions. We forged our own way, taking into consideration our privacy laws and Charter considerations. We have a made-in-Canada policy with respect to the collection of DNA. Depending on the type of offence, there are different rules in place and different tests. We have generally gone in favour of having a person convicted of the offence.
The rationale is that if they are charged with an offence, there is the presumption of innocence. A good argument could be made that an individual should not end up permanently in a data bank if they are innocent of that charge. The bill before you builds on the previous Bill C-13 and, with the one exception that Mr. Yost can tell you about, concentrates on people who have been convicted. Again, except for that subcategory within the primary offences, the discretion will remain with the judge. We have taken that approach and it seems a reasonable one. Other countries have slightly different experiences and solutions. We have chosen this approach.
Mr. Yost: The Department of Justice is monitoring what happens in other countries. We are well aware that the British system of taking DNA at the time of fingerprints was challenged under the European Convention on Human Rights and upheld unanimously. We are also aware of seven states in the U.S. moving towards taking DNA at fingerprint time. We await judicial consideration of its constitutionality. Obviously, we need to come to a decision while respecting the Charter. Perhaps one day our Charter people will be in front of a committee conducting a five-year review discussing the pros and cons.
There were three decisions regarding the British system. The main decision found that taking DNA involves the person's privacy rights and those rights must be protected. They were satisfied the privacy protections in place in the United Kingdom, which in my view are inferior than those in Canada, were sufficient to protect the person's interests. The public benefit, 15 per cent of the matches in the data base, is because DNA samples were taken at fingerprinting. We hope to present these facts to a review and will be guided by Parliament's decision as to the proper balance. We will change the legislation, if you wish.
Senator Bryden: When is that review now planned?
Mr. Nicholson: They have much on their plate. The Anti-terrorism Act is one this and the House of Commons committees are reviewing. If they proceed with the review in the fall, we would welcome that and would review any recommendations made.
Senator Bryden: Is it a parliamentary committee or a review by the committees of both Houses separately?
Mr. Yost: Section 13.
Senator Bryden: Can it be either or both?
Senator Nolin: It can be both or joint.
Senator Bryden: That is helpful.
When you take away the discretion from the courts to make some of these decisions, it sometimes has a poor result regarding the charges that are laid and the convictions. Are you concerned at all about that issue? I do not think even the convicting judge decides whether the DNA will be given. Is it not another arbitrator? Is it the convicting judge?
Mr. Nicholson: It is always the convicting judge.
Senator Bryden: There is always a concern for the rights of the individual, but there is also a concern for the practices of the courts. I have a concern as to the court's reaction to being dictated to, or what it is you shall do if a person, who comes before the court, is convicted. You list a number that are automatic.
Mr. Nicholson: Yes.
Senator Bryden: I think there is a level at which the courts would agree. There probably is another level. It would start with people being tested or giving samples at the time of charge in this country, and might be looked upon with scant eyes by many judges.
Mr. Nicholson: It could be, but that is not the law we have before us. I imagine in a review by both houses or a joint review that a number of these issues may be raised. With respect to the relationship between the legislation and the judges that make the conviction, as I think you pointed out, it is a fairly narrow group of offences for which an order for a DNA sample is ordered. For the vast majority of these offences, ultimately the discretion is in the hands of the judge.
When you look at that narrow group, that subcategory within the primary designated offences, most Canadians would think it would be reasonable that once someone is convicted of murder, their DNA should end up in the DNA data bank. That is the question we always have to answer or wrestle with: What is reasonable under the circumstances?
When I looked at this legislation originally, I looked at that subcategory and it seemed to me that was reasonable. Most people looking at that would probably agree. As you point out, we always try to balance what is reasonable in terms of, on the one hand, protecting the rights of an individual but, on the other hand, protecting the rights of society to have this sort of information available.
Senator Bryden: There appears to be a growing practice in other countries, for example, the U.S.A., where some states now take DNA automatically. Whatever fad that hits California hits us two or three years later. Our officials, our police and our legislators are influenced across borders, and they should be.
There is a concern among some minority groups, particularly visible minorities, that if we move more and more to non-discretion testing or taking of samples, or we move toward taking samples simply at the time of charge, that they would be subject to racial profiling. Some groups are concerned that is happening now even without the law. I believe you have said that we do not do that now and we are not contemplating doing that.
Mr. Nicholson: You raise an interesting subject. You correctly pointed out that, in our judicial system, we look at what others do. It only makes sense. Mr. Yost indicated a number of countries. Not surprisingly, we also share information with Australia, for obvious reasons. Countries such as Australia, Britain, the United States and Western Europe have similar systems to our own. As was pointed out, we do not necessarily follow or model our legislation on what we find in other jurisdictions. You would know from studying the Criminal Code that it is an adaptation of the 19th century English Criminal Code and, until 1949, the final Court of Appeal resided in Great Britain.
However, despite all the similarities and the shared history, as Mr. Yost pointed out, we have different rules with respect to both privacy and the collection of DNA. While we have similarities with other countries, we forge our own way, ultimately. That is appropriate for many of the reasons you enumerated. We have concerns about people's rights and privacy. That is all we are trying to do.
Going back to my earlier question about a DNA sample for someone who has committed murder, again, we try to do what is reasonable, and I think this bill strikes the appropriate balance.
Senator Bryden: I had my faith in DNA shaken when Mr. Yost said that if they have a partial or moderate match, then they send more information. I did not know there were partial DNA matches or moderate DNA matches. I thought there were either DNA matches or not.
Mr. Yost: When the RCMP biologists are here, you will have a better explanation, but in the DNA data bank, they take 13 loci on each and they put that into the computer. The RCMP checks twice to make sure they put in the right information. What they receive from crime scenes is rarely 13 alleles. We have not managed to train criminals to leave nice little cards with their blood on it. We obtain degraded samples, partial samples and mixtures. If a person was a victim of a gang rape, there will be a mixture. Scientists work out difficult questions as to whether they have a match, et cetera, in ways that are way over my head. I have been to conferences, and those parts I cannot follow, but I trust them.
We do have these occasions. If the match is a degraded one, maybe they have a match at seven loci, and seven loci is, to make up a number, one in a million, and 13 loci in one in 10 trillion or something like that. The fewer loci that match, the worse it is. If some loci do not match, they know they do not match and that person is excluded. That is why it is important to check, when they have some of these that the computer comes up and says they are close but at loci number six, we have a 1314 and they have a 1413, whether they put that number in wrong. Do they have a 1413 or not? That is what the scientists do. They do this at all times anonymously because they have no clue either at the crime scene or at the national DNA data bank of who they are dealing with.
Senator Bryden: It is a matter of judgment and the possibility of human error even there.
Mr. Yost: Yes, there is obviously the possibility of human error. The DNA match is a lead to the police. It can be and usually is a basis for seeking a DNA warrant from a judge so they have enough evidence to convince the judge that this person's DNA will be of assistance in the investigation: We will find out whether it is him or not. That is what is analyzed. The person who will go to court and prove beyond a reasonable doubt that it is the identity will be the scientist that did the crime scene, and then would have done the DNA warrant. That is not done by the DNA data bank. That is done at the forensic labs. The person there will be able to say, "Here is what I have, and here is what we have from the DNA warrant sample." The match from the DNA data bank is only a lead and may lead to a DNA warrant.
Senator Bryden: They would have to go to CSI.
Mr. Yost: One thing you will find from the RCMP biologists is that CSI is the bane of their existence.
The Deputy Chairman: In that case, if we share this partial information with a foreign country and the person in that foreign country is ultimately found to be innocent of the crime, do we then insist that they destroy the information that we have shared with them?
Mr. Yost: I am afraid I cannot answer that question. I had better not venture on it. I will obtain the answer from Mr. Bird as to what happens. We would have provided them with a name. Let us say we had a match. We would have told them it is such and such. They still need to build up their case, obtain their conviction, bring the person into the country often through extradition or whatever, and then we would have no idea whether the person was found innocent or guilty. We would not even know if they were charged in the other country. My understanding is that we have had three international matches and have been able to say, yes, we found the multiple rapists in three countries.
Senator Andreychuk: If we could have a written response, I am interested in whether we provide the DNA only for cases we are tracing, or have we been requested for DNA in cases somewhere else and they have had some linkage? In other words, we may not know what happens in another country if we are not the initiators of the issue.
Mr. Yost: You will have precise numbers from the National DNA Data Bank, but I was at a presentation in Toronto two weeks ago and my recollection is, there have been approximately 250, of which about 160 came to us from other countries, mainly the United States, and 80 times we had asked other countries, mainly the United States, whether they had a match for this profile. Out of those, three times there was a hit somewhere.
Senator Baker: Senator Bryden's point is that judicial discretion should be maintained within the existing framework. Could Mr. Yost verify to us that there are offences, both in the secondary and primary categorization, that can be tried? They are hybrid offences that can be tried either on indictment or summarily as section 266 of the Criminal Code, which is common assault, in the secondary category, and you have section 267, which is assault with a weapon in the primary category, which is a hybrid offence that can be prosecuted summarily. Therefore, it is important to leave judicial discretion there. Without the judicial discretion, one would have to change substantially those hybrid offences and/or the identifiable nature of them in primary and secondary sections. I was thinking common assault or assault could be a gesture that is threatening. An assault with a weapon could be this pencil and I throw it at you. That is firmly in case law.
Would you verify that and thereby the importance of maintaining judicial discretion so that everyone's DNA will not be automatically taken when they commit a relatively minor offence, although it is identified under section 267 or section 266.
Mr. Yost: That is certainly the philosophy of the legislation that is in front of you now, and the existing system as it was passed.
My view was that it will be a question for Parliament to decide in the context of a larger review whether that is, in light of the experience of other countries and in light of the judicial interpretation of what we have, whether that is something to be continued or whether the system should be changed, perhaps towards the British, on arrest, or the American model of basically all people convicted of offences.
You have asked me to say judicial discretion is necessary. It is certainly necessary in our system, except for the 16 extremely serious offences where we are removing even the shadow of the discretion that they have under primary offences. Other countries have not found that judicial discretion is essential. They take the position of, "If you are convicted," and in some countries, "If you are charged with this kind of offence, then in the same way as we take your fingerprints and picture, we will take your blood, and have it analyzed it at the same time." Other countries have gone that way.
Senator Baker: In our system, if you are charged with a hybrid offence, it is considered to be indictable, as you point out. For driving offences, for example, that are indicted, certain of them are hybrid, and you have your picture and fingerprints taken, but you have the right then to have them returned to you if the prosecution is done summarily by the Crown upon application.
Mr. Yost: That is correct.
The Deputy Chairman: The minister has told us that the subset of extremely violent offences where the discretion of the judge will be removed are all violent. When I read through them here in the Criminal Code under section 487.04, they are all violent except extortion.
Mr. Yost: I remember the discussion we had on putting extortion into the list. Extortion is a pretty serious offence and offenders generally threaten serious violence. You are right. Extortion does not necessarily require that there be violence. Any time we come up with a list, we have grey areas — which way should it go? The decision we made at that time was that extortion, in our view, was sufficiently serious to be in this list even though it does not necessarily connect at that time with violence, but the person generally threatens serious violence.
The Deputy Chairman: I thank you very much, Mr. Minister. I must say, Mr. Yost has done most of the talking.
Mr. Nicholson: I have no problem with that at all.
The Deputy Chairman: Mr. Yost, did you have something to say?
Mr. Yost: Senator Nolin asked about providing the list. What I have here in both official languages is the unofficial office consolidation done by our office as to what the Criminal Code will read like if Bill C-18 and Bill C-13 pass through Parliament, and I will leave that with you.
The Deputy Chairman: Honourable senators, we now have before us several officials from the RCMP: Joe Buckle, Director General, Forensic Science and Identification Services; John Bowen, Director, Biology Services; Isabelle Trudell, Officer in Charge, National DNA Data Bank; and Anne-Elizabeth Charland, Officer in Charge, Scientific Services.
Joe Buckle, Director General, Forensic Science and Identification Services, Royal Canadian Mounted Police: I would like to thank you for the opportunity to appear before you today.
Senator Baker: I would begin by welcoming the witnesses here within the meaning of this bill that is under consideration here in the Senate. First, I would like to ask a general question to Mr. Buckle relating to the backlog, as evidenced in the Auditor General's report of last month. Then I would like to ask a question of Ms. Charland and Mr. Bowen, who appear frequently in the courts across this country to give evidence, and have been the subject of some rather excellent and extensive cross-examination on their evidence. Then I would like to conclude with one other section from the Auditor General's report.
Mr. Buckle, the Auditor General identified a serious backlog in her examination of your department. You have been quoted in the media, speaking on behalf of the RCMP, as saying that you are taking measures to correct this backlog and to address those particular problems. Can you outline to the committee, it now being a month after the Auditor General's report, where exactly you stand on that rather shocking backlog identified by the Auditor General?
Mr. Buckle: Thank you for the opportunity to address that particular issue. As you can imagine, it is one that has challenged us previous to the Auditor General's report, and the Auditor General's report highlighted the issue around capacity within the forensic laboratories to deal with the case volume we have through our criminal investigations.
The Auditor General defined a backlog as any case in process that had not been completed within 30 days, and 30 days was our goal for completing what we were calling routine type cases. Urgent cases are completed in 15 days, and we had targeted 30 days for the completion of the routine category. With that definition, yes, there was a backlog previous to her examination, and there still is a backlog, but the issue here is timeliness of service back to our clients. We have determined that not all cases need to be completed in, say, 15 days or even 30 days. You can imagine that various jurisdictions would have rape and murder cases that are obviously serious and need to be followed up on quickly. Then, perhaps, they would have break and enter cases. That is not to diminish the fact that a break and enter case, or a series of break and enter cases may demoralize a community, but I think most would agree that rapes and murders are far more serious.
We had all those types of cases — rapes, murders, break and enter and all the various other types of crimes — in the same queue. As civilians in a forensic lab, we do not have the skill sets or the ability to determine police priorities, so our default was first in, first out. Because of that approach, our turnaround times became too long. At the time of the audit by the Auditor General, they were somewhere around 125 days on average for a routine case. We fully admit that is far too long.
Our goal is to look at which cases need to go out first and then to look at the capacity. How many cases are out there, and how will we handle those cases? The RCMP has released $5 million to my budget to allow us to hire more staff and to open another DNA processing site. Since the Auditor General's report came out about a month ago, we have engaged 11 biologists already. Our goal is to bring 70 new biologists into our system this fiscal. We will open a new DNA processing facility in Edmonton at our laboratory there.
In addition, we are presently meeting with our client base, our police officers and our legal partners to determine if there is a better way for prioritizing cases. We have come up with a concept that is sort of a grid. If you can imagine a grid that is divided like a checkerboard, in the far left would be A1, A2, A3, and of course A1 would be the most serious cases, A2 lesser, A3 lesser than A2. Then we go down to the Bs, Cs and Ds. The goal is to determine what our police partners would like as a turnaround time for A1 cases. If they tell us they want A1 cases back in 25 days or 30 days and A2s back in 40 days, that allows us then to ensure that our resources are targeted towards those time frames, because our police partners are telling us what the priorities are and we are not making them up internally.
We developed a series of questions that our police partners have helped us with, for example: is there a risk of flight; is there a continued risk to the community; and is there an ability to re-offend? We have purchased a piece of software called Expert Choice. We feed the answers to those questions into the software, which gives us a number and that number tells us where the case is on the grid. We then tell our police investigators, "Your case will come back in about 40 days, based on the information you have given us. Does that time frame meet your police needs?" If the answer is yes, then we proceed. If they have a problem, then they have an ability to come back and provide us with more information so that we can target it where they need it. Right now, we are on target with all those projects. In fact, I will go to British Columbia next week to speak to the police community there to determine what their targets are, and we are doing the same thing in other jurisdictions.
Senator Baker: Can we treat this as an opening statement by the witness so that it does not come out of my time? When we have the RCMP here discussing these matters, usually they are short in their answers. In fact, some of their answers have been questioned by the Auditor General as to their authenticity. She referenced in her report that it was not intentional on the part of the RCMP.
We welcome this thorough answer that you are giving, Mr. Buckle. I would now like to move on to Dr. Bowen and Ms. Charland.
First, Ms. Charland, I have noticed in case law recently that you have even had judgments decided on whether or not your evidence, as to a figure of one in — was it 9 trillion? Help me out here. Do you know what I am talking about?
Anne-Elizabeth Charland, Officer in Charge, Scientific Services, Royal Canadian Mounted Police: I am afraid I do not recall.
Senator Baker: I will give it to you. A case was decided that states, "The evidence of Ms. Charland was that the statistical probability of finding a random match in the general population to the DNA found on the victim's clothing was one in 950 trillion."
Do you recall now? The appellant says that such an astronomical number should not have been admitted into evidence as it was, and so on. We have this judgment of the Court of Appeal in Saskatchewan in R v. Fisher, based upon your analysis as to the reading that you gave. They also note that you have been a witness — and, this was up to the year 2003 — in six provinces. In 20 court cases, you were called as the expert witness and everyone treated you as an expert.
Getting back to the one in 950 trillion, do you still stand by that figure; that it is possible to make that estimate?
Ms. Charland: It is a random match probability. It is an estimate of what it would take to conduct a random match with a profile that was obtained in that particular case. It is meant to give an order of magnitude as to how significant the match is. It is an order of magnitude that is important. The exact number is a result of the profile obtained in that particular case.
Senator Baker: The Court of Appeal agreed with you and with the trial judge. I will now go to the main question and why I am so interested in having you here. It is not about the backlog. It is about a section on page 23 of the Auditor General's report. Dr. Bowen will perhaps be the person who may wish to address this question, as a scientist and as someone who, I suppose, would be the person directly affected by this matter.
There were two observations made by the Auditor General that I found disturbing. The backlog did not really interest me because, as Mr. Buckle says, when they set their own figure of 30 days and serious cases are processed in 15 days, yet some that are not as serious are processed in 90 and 100 days, that does not strike me as all that important. That is what made the news, but what the news media missed were the examples given in your laboratory of where, in one example of a murder case, there were obvious blood spots on a piece of clothing. You ran it through the automatic machinery in your lab and you found no results. Yet, it was clear to someone else looking at it that there were spots there. Your scientists complained about it and did it manually, I presume. That is my first question.
My second question is even more serious. I think you know what I am about to come to, because it was a concern of the chair in the last meeting as to the accuracy of your work. Can you comment on that first? You are the RCMP lab. There are separate laboratories in Ontario and Quebec, are there not, that are not RCMP? They do not come under a microscope this fine. If this is what is happening in your lab, then perhaps they should take note of these results.
Can you answer the question, which has not been answered: that is, how can you have blood spots on clothing that you can see with the naked eye but your machinery does not detect?
John Bowen, Director, Biology Services, Royal Canadian Mounted Police: There can be several reasons for that, one being that the storage of that particular exhibit could have caused the degradation of those samples if they are stored wet, under extreme sunlight or whatever. There are several aspects with respect to the stability of the DNA itself.
In this particular case, though, it was a result of the way the samples were identified within the laboratory. We used a test that caused a problem with our automated process. We had not identified what the real problem was with that type of sample until October of 2006.
Senator Baker: Only a few months ago?
Mr. Bowen: Yes, it was six months ago, roughly. That was when we sent out letters to individual investigators, asking them whether they wanted anything reanalyzed because of that particular test having an impact on the ability to isolate DNA from those types of samples. The problem was caused by a test that we use that helps identify blood.
Once that problem was identified, we corrected the problem within the laboratories. We identified the issue to the investigators so that they would not use the test improperly in the field as well. We now have a process where we have an improvement in our ability to isolate DNA and obtain profiles with our automated process as opposed to the previous process we used.
It was a point in time between September 2005 and October 2006 that we had this problem. We were trying to identify the real scientific issue as to what caused that problem, but it took some time before we had that answer.
Senator Baker: That alarmed me when I read this example, but what alarms me even more is the second example. This was a murder investigation. A sample was drawn from a suspect. It was used as the known sample on the screen. After its profile was examined, it was then returned for a rerun of the profile and it was found that the second profile was not consistent with the first profile.
The most shocking thing about that case is that everyone is concerned about the possibility that when a DNA profile is run, it may not be accurate. Although there is one chance in 950 trillion that you may give evidence — and the court suggests, Ms. Charland, that you are correct; it is an estimate — this case raises the possibility that a sample is run through your machinery, a profile is given and it is run again later but it is not the same profile.
How did something like that happen? There is no explanation given here. How do you explain that kind of error?
Mr. Bowen: I realize this speaks to the reliability of the technology. In this particular case, we had a profile developed the first time as you indicated, and we had a full profile for all the test sites that we look at for DNA profiling. On the second attempt we obtained an incomplete profile. It was from the same sample that we used to develop the first profile. Not enough DNA was put in the second test to obtain a full profile. We only obtained a partial profile.
We did not obtain a wrong profile or something different; it is only that we did not have the full profile we saw the first time.
Senator Baker: The way the investigators from the Auditor General's office described it was that a known sample was identified. The same known sample was run twice. It produced different profiles.
Mr. Bowen: That speaks to, as I said before, the fact that we had a complete profile versus an incomplete profile from the same sample. It was not a different profile, it was incomplete.
Senator Baker: It raises the possibility that a profile could not be accurate.
Mr. Bowen: No.
Senator Baker: The possibility was raised in this particular example found by the Auditor General's investigation.
Mr. Bowen: It is not inaccurate because it is the same profile; it is only incomplete. It does not have all the test sites providing an answer. In that respect, it influences the strength, the association they would make with that profile versus the fact that they would mistakenly identify someone else.
The Deputy Chairman: Would you say that it is only 50 per cent sure it is the same profile?
Mr. Bowen: No, it would not be 50 per cent. It would be the same profile. What we would say, in the case of Ms. Charland's testimony, we had a number like 950 trillion. That probability was due probably to all nine loci or all nine tests we run giving a result. In this particular case, the profile was incomplete, perhaps 1 in 400 million or some other lesser number with respect to the significance of that association.
Senator Baker: Dr. Bowen, when errors were reported by the scientists with the equipment they were using, they then did their check manually. What did they mean by that? Does this mean that the more accurate testing was done years ago when it was done manually? Does "manually" have the same meaning as I think it does; they are not running it through a big machine, but they are doing it physically? Is that what that means?
Mr. Bowen: That is correct. The new system is an automated system. We have implemented the use of robots within the new automated process. It is the issue of the ability to isolate sufficient DNA to obtain a profile. That caused a concern with the automated process. We have resolved those issues and now the automated process is more successful in isolating DNA than the previous technology.
The Deputy Chairman: Does that mean that you no longer run the samples in batches? I understood, when the first DNA bill came before this committee, and we had a seminar on how this was done, that they ran them in batches of samples all at once. Are you now running them individually?
Mr. Bowen: No, in the previous technology, the manual process, we used about 26 samples in a batch. With the automated process, we handle 78 samples in a batch.
The Deputy Chairman: Even more.
Mr. Bowen: Yes.
Senator Baker: Mr. Bowen, you also appear in many court cases. You are cross-examined on this issue on a continual basis, almost as much as Ms. Charland is. To date, have you been cross-examined on this particular aspect of what I have been asking you about for the last few minutes, and do you think that is because it came out in the report last month?
Mr. Bowen: We have not been cross-examined on that particular report, but I expect we will be in the not-too-distant future.
Senator Baker: I can tell you that nothing you say before this committee can be used in a future proceeding. We come under section 118 of the Criminal Code. We are a judicial proceeding so you are fully protected.
The Deputy Chairman: We are also protected by the rights of privacy of committees and the Houses of Parliament.
[Translation]
Senator Nolin: When the minister was testifying a little while ago, some of my colleagues were wondering about clause 31 of the bill. This clause is intended, among other things, to amend the scope of information sharing between you, through the commissioner, and foreign countries and agencies. Before going any further, are you familiar with this aspect of the bank's operations? If not, is there another witness who can tell us about this?
[English]
Are you familiar with the international relationship or should we ask someone else?
Mr. Buckle: We are familiar with it, but I do not think we have the expertise at the table. David Bird would be the best person to answer that.
The Deputy Chairman: You are the third person who has suggested we have Mr. Bird before us as a witness and I think we must.
Senator Nolin: Perhaps you can help on a word that is used in the DNA Indentification Act. Do you have the act in front of you? May I read it to you? There are three types of information; two now and three if Bill C-18 is adopted, the kind of information that can be given to another jurisdiction, an international organization.
It is said in the act at section 6(1)(c):
if the DNA profile is, in the opinion of the Commissioner, similar . . .
In French it is "semblable." I want to know what a similar identification is for you.
After hearing the question of Senator Baker and the answer, and the report from the Auditor General, "similar" seems large. I want to hear from you, what is the meaning of "similar?"
If we adopt Bill C-18, it means that we will provide to international bodies DNA profiles if they are similar to what we already have, which is not the case now.
Mr. Buckle: Perhaps I can ask either of my colleagues, Ms. Trudel or Mr. Bowen to answer that. The issue here is moderate match and what exactly is the extent of "similar," the definition of "similar."
Senator Nolin: You may have a word to describe what the act is trying to define and you may have another word to define the same situation.
Isabelle Trudel, Officer in Charge, National DNA Data Bank, Royal Canadian Mounted Police: I will try to explain. We mean "similar" in the context of what we call a moderate match. When we do genetic profile comparison, two types of profiles can be compared. In the Convicted Offender Index, we have single source profile or profile that originated from one individual. From a crime scene investigation, as explained by Mr. Bowen, a profile can be incomplete or partial. If the DNA is degraded due to exposure to environmental conditions, we may not have a complete genetic profile at either the nine or 13 regions of the DNA where we perform the test.
Also, in the context of forensic investigation, we could have profiles that originated from a mixture of DNA, originated for one or more individuals, for two or three individuals. When we have a mixture of profiles, then we must do an interpretation to try to see if profiles could be dissected out to be compared to other profiles.
In the context of a moderate match, I will take an example of a profile contained in the Convicted Offender Index that might moderately match to a profile found at a crime scene — that is, this profile could be included in that crime scene profile, or it is similar. There may be genetic information missing; for example, if the profile from the crime scene is single source, where there is degradation, there might be one region of the DNA where you are missing part of that information.
I think it has been explained to you as a series of numbers. For example, in a region of DNA, you could have two numbers associated with that region — let us say 16 and 17; the convicted offender might have this profile but the crime scene, because the sample is degraded, might only show the 16. This is what we call a moderate or close match. It is still possible that this convicted offender sample is a contributor to that single-source sample, but there is degradation; there is a scientific reason to explain why some genetic information is missing.
In the context of a mixed sample, there might be additional information at a crime scene. Going back to my example, for one region of the DNA, the convicted offender profile might be a 16, 17; but at the crime scene the DNA was a mixture, and it was difficult to dissect out which DNA came from which person. Therefore, the submitting laboratory might put that in as a 16, 17 and 18. The 18 might come from the second source; but because of the genetic information available, the scientist was not able to make a clear separation of the profile.
When those two profiles are compared, this is what we call a close or moderate match. That is, the convicted offender sample — the 16, 17 — could be a contributor within the 16, 17 and 18.
Senator Nolin: If I understand correctly, if Bill C-18 is adopted, we will be able to do internationally what we are able to do nationally. Am I right?
Ms. Trudel: Yes, that is correct. Because the two profiles compared are not single source, at that point — for example, I will speak of a profile from the Convicted Offender Index — there must be discussion between the two scientists at the submitting lab and the Convicted Offender Index as to why these two profiles match closely. Is there an explanation? Is there degradation of the sample?
For them to report a profile to go into the Convicted Offender Index, it must meet some of their interpretation guidelines. They might see that missing profile, but it is not reported because it is below their analysis threshold. Then they will discuss that. However, when the profiles are put in the Crime Scene Index, they only see the series of numbers. They do not see additional information that the scientists and the lab have in respect to the height of the profile or the proportion of the mixture. To be able to provide an investigative lead, those profiles that will be probative, the discussion must take place between the submitting laboratory and, in this instance, the DNA data bank, to decide if this is a match worth pursuing before any personal information regarding the convicted offender sample can be released to the foreign agency.
I also want to point out that, if Bill C-18 allows it, it would be the DNA profile that would be shared at that point. That biological sample would not be sent abroad; only the information would be shared to decide whether it is a match worth pursuing.
Senator Nolin: Senator Baker raised a question about the backlog. Bill C-18 will probably give you a 50 per cent increase in your job, in your workload.
Senator Baker: I did not ask about that, but yes.
Senator Nolin: Is this increase only a question of putting more money into your organization to ensure there will be no backlog or a reasonable backlog? Maybe you want us to ask that question to the minister responsible — the other minister.
Mr. Buckle: I would like to separate here the DNA data bank from criminal operations. The DNA data bank, of which Ms. Trudel is the manager, has been a success story in every sense of the word. There is capacity within the data bank to absorb the impact that Bill C-13 and Bill C-18 will have on the operations of the data bank.
Where we are concerned is in the operation of our labs. That was the subject of the Auditor General's report, and that is what we call criminal operations. This is the everyday assistance to the police investigator. That feeds into the Crime Scene Index of the data bank. We need to ensure we have capacity there. That is where the funding from the minister —
Senator Nolin: It is what you call the forensic science file, right?
Mr. Buckle: Yes.
The Deputy Chairman: On that same point, I understand that at the end of February, you noted that the forensic lab services currently contain no DNA technicians. You have an extra infusion of $5 million from the budget. Do you now have DNA data technicians working in the labs?
Mr. Buckle: Could you state your quote again, please?
The Deputy Chairman: On February 27, it was noted by the RCMP that the forensic lab services currently contain no DNA technicians. It was noted at that time too that you expected the caseload to — 120, I am sorry. I am looking at a note here to me that that says "no" but it actually should be "120." I apologize — you do not need to panic.
You expected the caseload to increase by 42 per cent, but I think at that time you also were not taking into consideration clause 6 of the bill, which allows for so much increased sharing internationally of the data. Has your 42 per cent increased, and do you have enough people to do it?
Mr. Buckle: Yes, again, that will require a separation of data bank and operations. The international sharing will impact the data bank, and we believe there is capacity to handle that. The 42 per cent is a conservative estimate of the impact on our operations in our labs. I do not think that we have ever been in a better position to meet that demand. The RCMP has injected $5 million into my budget; and the government, with the passage of this bill, will provide another $15 million over a two-year period.
I cannot definitively say we will do every case because that will put me in a position where I could mislead you. However, I believe we are taking every step, with that infusion of money, to ensure that we can meet the demand in the criminal operations side and with the data bank.
Senator Nolin: What was your actual budget before the $5 million?
Mr. Buckle: It was $10 million.
Senator Nolin: It was already $10 million; they added $5 million, and another $15 million will be added, so you will grow from $10 to $30 million?
Mr. Buckle: Over two years.
Senator Nolin: That is huge.
Mr. Buckle: It is.
[Translation]
Senator Rivest: Did the Quebec and Ontario provincial police services have the same backlog problems as you had in the RCMP?
[English]
Mr. Buckle: I cannot quote exact numbers. However, I am familiar that they are experiencing the same capacity challenges that we are, and are as concerned about the increase in demand as we are. I understand, as well, that they are approaching their provincial colleagues to ascertain what, if any, budget availability there will be for it.
Senator Bryden: This relates to the backlog. Can you tell us which offenders, committing what types of crimes, are required to provide the samples for DNA testing? I do not need a list but I am trying to understand it better. Someone mentioned that DNA was required in cases of break and enter. If a person commits break and enter, is convicted of an indictable offence and is incarcerated for more than two years, does that person's DNA go into the data bank?
Ms. Trudel: There are two kinds of offences for which DNA can be collected under authority of the Criminal Code: the primary designated offences, which used to be mostly violent crimes against a person; and secondary designated offences, which would include break and enter of a dwelling and robbery. Following conviction, an individual may be required to provide a DNA sample for inclusion in the Convicted Offender Index of the National DNA Data Bank. However, an order must be issued by the judicial system for it to be accepted by the NDDB.
Senator Bryden: There is a class of offence that automatically requires the offender to provide a DNA sample. Certainly, that will be so now, where there is no need for the discretion of the judge. What proportion of your work is directed toward offenders who commit primary offences or violent crimes against a person, such as murder, attempted murder or sexual assaults, and what proportion toward those who commit secondary offences, such as property crimes?
Ms. Trudel: Our current statistics on the kinds of samples received at the National DNA Data Bank indicate that roughly 53 per cent of the samples received are following conviction for a primary designated offence, whereas 46 per cent of the samples received are following conviction for a secondary designated offence.
Senator Bryden: Are some secondary offences crimes against a person?
Ms. Trudel: Yes, some of them involve assault, I believe.
Senator Bryden: If you remove the assaults, which are crimes against a person, from the secondary offences statistics, would that leave you with 30 per cent for property crimes?
Ms. Trudel: I am not sure that I understand your question. Do you want to know how many samples? I do not have that data with me but we could provide it for you so you will know how many samples are provided following the particular offences. It is my understanding that the majority of the samples we receive are provided following a secondary offence, which would include break and enter and robbery.
Senator Bryden: Those are property offences. We heard today that extortion is on the higher list. Why it is there, I do not know. I heard the explanation that extortion is serious and likely to become worse. I am not so sure that we should load up a sophisticated, complicated, expensive system of identifying offenders with the DNA of those who commit break and enters and robberies — offences that can be handled, in many instances, in a different manner. Could some of your backlog and overload, which will continue to grow over time, be ascribed to those offences? I know it is not your decision to make. Likely, it is our decision, as legislators, to make, ultimately. The removal of the crimes against property that did not involve violence against a person from the system would reduce your workload in your facility. Is that correct?
Mr. Buckle: Perhaps I could respond to that question. I could not agree with you more that there must be a review by legislators of how we use the forensic tool. Prioritizing using the method I explained previously with the A1, A2 and A3 categories is our attempt to direct our resources at the more serious cases, such as rape and murder, et cetera. However, there is a pent-up demand in each of the provinces. By virtue of the biology casework agreements, the RCMP labs are compelled to do all primary designated offences and a portion the secondary designated offences, depending on capacity.
We have advised our police partners that if we try to undertake all the lesser crimes, our waiting times for the more serious crimes will extend longer and longer. My message to police chiefs and criminal operations officers is that they must go back to grassroots policing to try to resolve some of those offences by traditional police technology, as opposed to using DNA each time. DNA is a sexy technology that we can see utilized on many television shows but, at times, it is applied to areas where it should not be applied.
One caveat arises in the area of break and enter. Currently, we are seeing about a 60-per-cent hit rate from samples taken back to the NDDB from break and enter cases with no suspects. About 26 per cent of those samples have a hit on a Convicted Offender Index, which means that we are able to solve the crime. Sometimes, it might be a lesser crime but we still take a criminal off the street.
In considering how we apply the DNA tool, we still need to look at what it means to the various communities. I am from a small town in Newfoundland, where a series of break and enter cases would probably demoralize the community.
Senator Bryden: Do the hits that you receive from a break and enter sample and from the NDDB of previously convicted offenders tend to be offenders of break and enter or of violent crimes?
Ms. Trudel: The hits to a primary designated offence that we obtain from samples taken following conviction of a secondary designated offence, such as break and enter and robbery, vary from 10 per cent to 15 per cent of the time. The hits are often relevant to sexual assault or murder investigations. If the sample had not been collected following a conviction for a secondary designated offence, then we might not have been able to provide a lead in the investigation of primary designated offences, most of which are serious.
Senator Bryden: The person whose sample is in the National DNA Data Bank has already committed the primary designated offence. Otherwise, you would not have the offender's DNA.
Ms. Trudel: The statistic I explained is of a sample sent to the National DNA Data Bank following conviction for a secondary offence. When the sample was compared to unsolved crime scene material, it allowed us to provide a lead in 10 per cent to 15 per cent of the primary designated offence cases.
Senator Bryden: I am missing something. When the DNA of a person is in the data bank, what offence did the person commit?
Ms. Trudel: I am saying that when we receive samples following a conviction for a secondary designated offence — break and enter or robbery — we compare that sample to unsolved crimes in the Crime Scene Index and that it will receive a hit to an unsolved primary designated offence 10 per cent to 15 per cent of the time.
Senator Bryden: It is an unsolved primary designated offence.
Ms. Trudel: That is correct.
Senator Bryden: — when you are looking for a break and enter.
Ms. Trudel: When we take a sample from someone following conviction of break and enter or robbery, the odds are that it will provide a lead in an unsolved primary designated offence investigation 10 per cent to 15 per cent of the time.
Senator Bryden: As a cost-benefit analysis, is it worth the effort to keep doing break and enters and robberies?
Mr. Buckle: From a cost-benefit analysis, as a senior administer, I would argue towards keeping our break and enter unit working. We think a 10 to 15 per cent upgrade from having someone in there from secondary to primary investigations is value added to the community.
Senator Milne: To satisfy my curiosity, Mr. Yost was here from the Department of Justice and described a DNA profile as looking like an EKG or ECG chart. I understand it to be a type of bar code. It was described to us as such in our DNA testing seminar.
Mr. Buckle: Would it be possible to make up a package to send to the committee?
The Deputy Chairman: That would be interesting and useful for the committee.
Mr. Bowen: It would be possible to do that. An EKG chart looks like peaks and valleys, when we obtain the raw data from the instrumentation. It transcribes into a series of numbers, as Ms. Trudell has indicated. We consider it a bar code but it does not look like a bar code.
The Deputy Chairman: Things have changed since our seminar.
Senator Baker: It has been interesting and you have answered our questions well. You have no laboratories in New Brunswick, Newfoundland and Labrador and Prince Edward Island. The laboratories are in each of the Western provinces — British Columbia, Saskatchewan, Alberta and Manitoba — and you have announced today, a new establishment in Edmonton. From our reading of case law we discover the importance of the continuity of possession of these articles that you are testing. The continuity of possession sometimes forms an entire pre-trial case on its own. This is the integrity of the sample.
Can you assure us the integrity of that sample and its continuity of possession is not affected when we send a sample from St. John's, Newfoundland to Edmonton, Alberta? Would it not be much better to send it from St. John's to Saint John or from New Brunswick to some location in New Brunswick? Should you not have a laboratory there? Is it true the Government of Canada dictates where these laboratories are located?
Mr. Buckle: We are enhancing our present facility in Edmonton. We are not building a new one. We are installing equipment to handle DNA processes.
From the philosophical point of view, it would be advantageous for us to have a laboratory facility in every major city across the country. Practically speaking, budget wise, we maintain six laboratories in six major cities and use couriers efficiently for moving samples. Our protocols for moving samples preserve the integrity of the samples while ensuring no degradation of the biological material. With all due respect, sir, I do not feel that I am competent to answer the last question on the government.
Senator Bryden: What are the six cities?
Mr. Buckle: They are Vancouver, Edmonton, Regina, Winnipeg, Ottawa and Halifax. There are also two provincial laboratories.
The Deputy Chairman: I thank you very much for being patient with us, and bringing us up to date on DNA testing.
Mr. Bird rushed over from his other meeting to be here if we needed him but since our time is short, I think we need to call him in on another day.
The committee adjourned.