Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 31 - Evidence - June 13, 2007
OTTAWA, Wednesday, June 13, 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 4:22 p.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call this meeting of the Standing Senate Committee on Legal and Constitutional Affairs to order. I wish to welcome honourable senators, members of the public who are with us today and those who are listening by way of web cast.
Bill C-18 was introduced in the House of Commons on June 8, 2006. The bill proposes to amend 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, save for a few sections, not been declared in force. One of the notable features of Bill C-13 is that it expanded the list of offences for which a DNA data bank order can be made.
Bill C-18 proposes to amend the Criminal Code to clarify that a warrant can be executed for the arrest of a person who fails to appear for DNA sampling, which will become an offence, and that bodily samples can be taken by any Canadian police force that arrests the person. Bill C-18 also adds attempted murder and conspiracy to commit murder to the offences covered by the retroactive provisions. These provisions apply to offenders convicted of a single murder, sexual offence or manslaughter prior to the June 30, 2000, when the legislation that enabled the creation of the National DNA Data Bank came into force. Other parts of the bill will ensure that DNA data bank orders can be carried out even when, for logistical purposes, it may not be possible to take the sample at the precise time set out in the order.
The bill also proposes a number of changes to the DNA Identification Act. One of the changes is designed to permit the destruction of samples when a provincial Attorney General certifies that the order was made for an offence not intended to be included in the DNA data bank. This will eliminate the need for the Attorney General to make an application to the court to have the order quashed.
Another change will ensure that information provided by the National DNA Data Bank can be used to investigate all criminal offences, not simply those offences designated to be included in the data bank.
Amendments to the National Defence Act will bring these changes into the military justice system.
To answer questions on the various aspects of this bill, I am pleased to present today Mr. David Bird, counsel in Legal Services for the RCMP. With him is Isabelle Trudel, Officer in Charge of the National DNA Data Bank for the RCMP. I understand that neither witness has a formal written statement or opening remarks.
David Bird, Counsel, Legal Services — RCMP, Department of Justice Canada: Thank you, Mr. Chairman. I am pleased to be here and hope we can help the committee understand the reasons behind these proposed amendments, which we feel are very important. Please ask us what questions you have, and we will do our best to help you understand, the best that we can, the reasons for these amendments.
The Chairman: In preparation for today, have you had an opportunity to see the transcript from the last hearing when honourable senators asked many questions about destroying some of the evidence and samples and some of the international protocols involved?
Mr. Bird: Yes, I did read it this afternoon.
The Chairman: Ms. Trudel?
Isabelle Trudel, Officer in Charge, National DNA Data Bank, Royal Canadian Mounted Police: Yes, I also read it this afternoon.
The Chairman: The floor is open to questions.
Senator Bryden: Having done your homework so recently, do you have any observations or comments to make on the discussions we had? In many instances, our questions were answered by saying, ``Well, Mr. Bird could answer that.'' I did not bring my transcript, but, Mr. Bird, how about supplying some of those answers?
Mr. Bird: I have to give you my humble apologies, in that I may not have all of the answers, but I will try to give you the best answer that can be given. I can basically say that I think I am here because it fell to me to ensure that the DNA data bank was in compliance with the DNA Identification Act when it did its international exchanges. The system we have put in place is designed to conform with the legal requirements of the DNA Identification Act, particularly section 6, which requires an international agreement to be put in place in conformance with the Privacy Act and that the reporting mechanisms that follow have to be authorized by the act, and it is an offence if they are not properly followed. The compliance with section 6 of the DNA Identification Act is the foremost consideration I have.
The system is not quite one-stop shopping. It may be that, as the afternoon progresses, we will have a better understanding of the complexity of the decisions that are made that go into international exchanges.
Senator Bryden: Do we have section 6 in front of us in this bill?
Mr. Bird: You will have the proposed amendments to it, but I do not know if you have the whole thing.
Senator Bryden: Can you give us what that does?
Mr. Bird: Section 6 has been amended by Chapter 25 of the former bill, C-13, which allows more information to be transmitted domestically, but for international exchanges it is restricted to a system where only information about whether a DNA data bank match has occurred in the data bank can be given to an international agency or foreign police agency.
The main issue is that there has to be, according to subsection 5 of section 6, an agreement between the Government of Canada or one of its institutions — the RCMP National DNA Data Bank — in accordance with 8(2)(f) of the Privacy Act, that the government or international organization or institution, as the case may be, authorizing the communication solely for the purposes of the investigation or prosecution of a criminal offence.
That has to be in place. The system we put in place to comply with that is an international agreement between the Interpol Central Bureau in Ottawa and the National DNA Data Bank officer in charge. That means Interpol can only use the DNA profiles transmitted through its system for the purposes of the investigation and prosecution of a criminal offence.
In addition, when information is transmitted, caveats are attached that have the same legal requirement to the recipient through the system. Thus, we have a system that at the first level only requires Interpol to abide by those restrictions on the information it receives for transmission purposes; when it is transmitted, a further caveat is added directly to the recipient, who is then required to abide by the same conditions. Those conditions restrict that the information be used only for the investigation and prosecution of a criminal offence and that it be retained only for that purpose so long as it has that purpose before it. A retention period limits any recipient from using it. If information is passed on for a similar purpose, any person to whom it is passed must abide by the same conditions.
Senator Bryden: Therefore, it is to be used only in the prosecution of an offence. Is that any particular offence?
Mr. Bird: No, it can be any investigation and prosecution of a criminal offence in that jurisdiction. It can be used for more than one. If they have no other use for it, they must destroy it.
Senator Bryden: How long can they keep it before they have to destroy it?
Mr. Bird: That is subject to their retention periods and the fact that they would have no other reason for keeping it. If they finish the prosecution and there is no other use for it, it should not be retained in the National DNA system. However, a no-hit system, which is in place now, means that we never send them a profile. They will have derived for themselves either in their reference samples, which they would know the identity of, and it is unlikely they would be sending it to us for that purpose, or their criminal records a profile from a crime scene. They keep that because they derived and analyzed it in their own forensic labs. They deal with that according to their own legislation and legal requirements on the retention of personal information.
Senator Bryden: Is there flexibility vis-à-vis how long they can hold this once we have given the sample to them?
Mr. Bird: We actually never give them a sample at this time. Under our law, as it is written, we are not permitted to send a sample from a Convicted Offender Index person that we are aware of. However, we can, and do, send abroad anonymous samples with no identifier that have been derived from a Canadian crime scene when a Canadian law enforcement agency asks us to send it to a specific country or countries through the Interpol system. They will send out crime scene profiles that relate to a designated offence. That is all we are permitted to the keep in the Crime Scene Index. There is no personal information with that. If they have that, they will compare it to their potential crime scene, to determine whether there is a serial offender, or their reference samples, like our Convicted Offender Index. If they can identify it, they will tell us, and then we go to another stage.
After that, information can be exchanged through any of the international mechanisms in place for countries and jurisdictions to exchange information. It may go through a Europol treaty; it may go through a mutual legal assistance treaty request, whereby we ask for a judicial order for that name to be used in evidence; or it may be done through a police cooperation agreement where it is considered intelligence and only used for that purpose — in which case the further transmission and use of that information has to be confirmed in most cases before it can be used for any other purpose. It is subject to the normal rules that would go with police information. We are not exchanging DNA information. Only the personal history or investigation case information would be sent forward after the confirmation that we have the same person possibly committing serial offences internationally that they might be able to tell us the identity of and that they have convicted and have in their data banks.
Senator Bryden: Is there a point at which you provide DNA information?
Mr. Bird: At this time, we send abroad only crime scene anonymous profiles. Usually, they send us only the crime scene, but they can send us any other profile — we do not restrict it. We then ask them what the use of it is. If they send us a missing person description, and it did not relate to an investigation of an offence, we are not permitted to give them information on that. We are not permitted to give them information; they can only use it for humanitarian purposes. In general, all that internationally flows between countries — because it makes no sense to send other kinds of profiles — are crime scene profiles or crime scene ``stain profiles'' — the term used in the U.K. and Europe. We are generally exchanging only that information, because that is the stuff we do not have an answer for. We already know the profile of the people in our data bank for convicted offenders; we are interested in finding out who committed the crimes and whether they can be identified as a serial international predator, terrorist or organized crime member. In that case, it is a significant piece of intelligence for police agencies.
The Chairman: What would be involved in the crime scene profile?
Mr. Bird: The profile is a series of numbers, I believe. It depends on how it is derived from a kit. There are various systems in place; most of them have five to eight common loci that are the same between all of the countries exchanging information. We have kits with 13 loci, which means the discriminating value is high. Meanwhile, certain Canadian agencies' investigation profiles are only nine. They identify an overlap between nine and 13 so that we have a number in common. The problem is that the crime scene profiles, as you heard from another witness this week, are not perfect profiles at times. They can be degraded or mixtures between victims and the perpetrator. There might be some difficulty in determining exactly what the profile is in terms of these mixtures. It can require scientists between countries to talk to one another — which is why we are asking for this ``moderate match'' power, to say, ``We do not know whether we have a match between your crime scene and our convicted offender, or our crime scenes.'' We need to talk, to determine whether the missing alleles are in their profiles and look for the commonalities to know whether we can eliminate the profile as a match. If we cannot eliminate it, then we have to find other ways to come to a conclusion about how many investigations this might impact.
Senator Milne: I have a supplementary. If you have missing alleles, that is more useful then to exclude.
Mr. Bird: We have not excluded them. If we normally use 13, and we are getting a match in only six or seven and we have a number overlapping, then we have a potential for multiple matches in our Convicted Offender Index to the particular crime scene that has come in. We need the ability to say whether it possibly matches any of the others. We give them our full match and they have to go and look at the raw data to determine whether they misidentified a victim's profile. When they took it out, they might have taken out the wrong allele, which can happen. It might belong to a perpetrator but they took it out thinking it belonged to the victim. It happens. It could just be an old and degraded sample and there is only a certain kind of profile to derive. We might have so many matches that it might not be feasible to give all the information related to them.
Ms. Trudel: You were wondering what a DNA profile looked like. A package of information was sent to committee members. If you look in the presentation, the second slide in that presentation is National DNA Data Bank. I have the French version in front of me, but I think the numbering of the slides is the same. At slide 13, at the top, you have a schematic representation of the different ways a genetic profile can be visualized.
If you recall from the last presentation, Mr. Bowen mentioned that there were peaks and valleys. This is what you would see at the top. For a particular region of DNA, if you look at D5, you would see two peaks. These are two pieces of genetic information that were passed on to that person from their biological parents, mom and dad. That is one way of visualizing the information. For exchange purposes, as you can see, that information can be converted by looking at the size of that region of DNA, which is the second table that you see. A third way to visualize that information is looking at it by what we call in science alleles. The profile at D5 has two alleles, and they are labelled 11 and 12. These are the types of numbers that constitute the genetic profile that is put into either the Convicted Offender Index or the Crime Scene Index. This is just a series of numbers.
Mr. Bird was explaining that these profiles from crime scenes can be sent abroad to be compared to databases of foreign countries if we have an unsolved crime in Canada. We can also receive profiles, that is, a series of numbers, from a foreign country to be compared either to our Crime Scene Index or the Convicted Offender Index. The only profiles currently going out from Canada are profiles from crime scenes. No samples per se from crime scenes are sent, only a series of numbers, and no profiles from convicted offenders are sent abroad currently as the legislation stands.
Senator Fraser: Not being a scientist, I have skittered back into the political arena here. How many countries do we share information with? Who are they? Do we have a list?
Ms. Trudel: I have a list. I presume a list was sent out, but I do have that information.
Senator Fraser: We have not received it, so perhaps you could furnish it to the clerk. I believe it is a large number of countries.
Mr. Bird: Potentially, it could be 186, all the Interpol countries. It is any country in the world that has access to Interpol. However, the other side of it is that not many countries in the world have a DNA data bank. Mostly, it is Western developed countries, European and American, that have a meaningful data bank that can be searched. If we have a reason to assume we have a link between a crime scene in Canada, an investigation where we have DNA, and a potential that this is in an undeveloped country, we may try to ask them if they have crime scene DNA profiles. If they do not, there is no point in sending DNA to them because they could not compare it against any of their investigations. A number of investigation questions would have to come up before we send it to an undeveloped country that may be involved.
Senator Stratton: I am curious, because I am as intrigued as is Senator Fraser. Is there any other reason that you would not send DNA data, for example, human rights issues or something like that, or is it just because they have the capability of analyzing it, you will send it if they are on that list?
Mr. Bird: There is a multi-stage process in the decisions that are made. It begins with the DNA exchange. It could begin with fingerprints or any forensic issues where you do not necessarily know who you are dealing with but have reason to believe you have an international criminal or organization and you have a DNA connection. The real question becomes this: What other information, other than the DNA, is sent? If they send you a profile and it matches, then the next question that may be asked is what they want to use it for. Has this been a problem in the past? If you consider it is not for legitimate law enforcement purposes, then the discretion is always not to send any further information. However, that is the same decision that is made with respect to any investigation or any information that we possess in our criminal intelligence banks or criminal history banks. It would be no different from any other exchanges of information.
Senator Fraser: I want to find out more about this, if I can. As I understood it, you said, and we heard in an earlier meeting, that the information is only exchanged with another country in connection with criminal investigations. Question number one: Who determines what is a criminal investigation? Is that an offence that would be a criminal offence in Canada, or is it an offence that the other country deems criminal, such as criticizing the glorious leader?
Mr. Bird: In fact, that would be the case. They would have to abide by —
Senator Fraser: What would be the case?
Mr. Bird: The case would be that they would be applying their law or what they consider to be a criminal investigation prosecution. We cannot export our Criminal Code abroad and say you can only use it for offences that are offences in Canada. We may, when we learn what offence they are investigating, refuse further cooperation.
Senator Fraser: The lawyers around the table can correct me, but I believe that there are areas, and the extradition law comes to mind, where we talk about offences that would be criminal offences under Canadian law. Is there any inherent reason why we could not do that for this kind of procedure?
Mr. Bird: At a certain point, that may in fact become a determining factor for further cooperation. If an extradition request is likely to arise for a Canadian citizen in Canada, then we may not cooperate further.
Senator Fraser: I will give you a hypothetical example of the kind of possibility I am thinking about. Someone aged 19 gets convicted of break and enter, say, and he pays his debt. It was not that serious a break and enter, and no one was hurt. Twenty years later, he has become a human rights activist and is active in Cuba or Tibet or Iran or various places that actually have access to some fairly sophisticated technology, should they chose to put their priority on that. He writes a letter to the newspaper, criticizing a minister or the glorious leader. The police come along and grab the envelope and do a DNA check on the saliva on the envelope, if that is possible, which I think it is, and they seek help from you. What happens?
Mr. Bird: That is an interesting example, because if he had a youth record —
Senator Fraser: No, I said he was 19.
Mr. Bird: He is an adult with an adult record. He would be treated as an adult. His DNA profile would be kept in the National DNA Data Bank indefinitely, as required by the legislation. If he has not been acquitted or conditionally discharged, that information remains indefinitely.
If a foreign agency sends in a crime scene profile or what they consider to be a profile, and we accept it as a crime stain, he would be run through the National DNA Data Bank and, if it matches his record, a report would go back that we have a match. That would be the end of the transmission, until the foreign country comes back and asks for further information, assuming they wanted identifying information. We do not tell them what kind of match we have. We simply say we have a match.
They would then begin the inquiry as to what information and why this would be transmitted. It would be no different than if they sent in a fingerprint at this point. If they had found a fingerprint at the scene that matched his criminal record, the same kinds of questions that would be asked with regard to fingerprint matches would be asked here. Would this information be sent to this country given its potential human rights record? This analysis would be made by the RCMP criminal records, the international exchange section. They would look at it and determine whether the country in question is one we normally exchange this kind of information with, for these purposes. It would be the same consideration.
Senator Fraser: Are there guidelines, practices or rules that we could see? Are there such things, and, if so, would it be possible for us to have an indication of what they might say? As technology spreads and becomes ever more precise, these dangers become ever more acute. I am not accusing anybody in the RCMP or anywhere else of setting out to jail political dissidents in Iran, but things can happen, so I am trying to find out what exists to protect against things.
Mr. Bird: I may have to ask other colleagues for more details on their policies with respect to this kind of example, but there is a directive from what was then the Solicitor General, now the Minister of Public Safety, on international exchanges of information and the kinds of requirements that are required to be put in place, advice sought from the Department of Foreign Affairs and legal advice about the kinds of arrangements put in place. There is a process to ensure that, if they do not already have a treaty in place for the exchange of this kind of information, new ones would then be scrutinized by this process so that the RCMP would be aware of potential risks and problems in any particular jurisdiction, and reliance on the advice of our Department of Foreign Affairs and legal advice about the legal basis of the treaty and the binding nature of the requirements that we are putting out. There is that overriding safeguard.
Beyond that, I will have to ask my colleagues if there is anything in particular they can advise me.
The advice I can give you is that there is no set policy beyond the fact that you are now relying on the Interpol exchanges and the Interpol charter, which says that member states will only use this information for the investigation and prosecution of offences for criminal law purposes, not for political purposes. The countries we are exchanging information with through the Interpol system have all agreed to not use this information for political purposes. At the same time, each of these requests is looked at on a case-by-case basis to see whether or not cooperation would be forthcoming; however, if they meet the requirements, generally this information is provided.
The Chairman: Earlier in your remarks, you said that when a recipient foreign country receives some DNA information, it goes with conditions, and you said these conditions must be met. What would you do if there were a breach of those conditions in a foreign country? What is your method of enforcement, and what is your recourse?
Mr. Bird: My understanding is that the recourse would be non-cooperation in the future, and their complaint could be raised with Interpol itself.
The Chairman: There is no reciprocal legal enforcement agency available that you know of?
Mr. Bird: Not that I am aware of. It would be a diplomatic matter as opposed to a legal matter. At the same time, the way this is likely to come about is if other countries suddenly start asking us about information that was exchanged with them for some other related purpose and/or we find that they have matches with our DNA profiles that we assume they did not have. That is how we would likely come across finding out they were not respecting these conditions.
The likely sanction would be international ostracization, where all other countries say we cannot trust their undertaking to only use this information as we intended, and that would be a serious blow to their international cooperation with respect to all other countries.
Senator Stratton: Has there been a history that would support the supposition that countries would use the DNA against an activist, to your knowledge, or a similar situation? For example, as Senator Fraser has alluded to, you pass the DNA on and the folks over in whatever country use it against that person to convict him of a crime he did not commit. Has there been any evidence of the misuse of DNA by other countries? That is the basis of the question.
Mr. Bird: To this date, I am not aware of any Canadian experience that has any international misuse of DNA. Most of our exchanges that have been successful in identifying someone have been with our American neighbours or related to investigations transpiring in Mexico and the United States, and misuse of the information has not been something which has come about. Internationally, we do not send a profile of an individual, but if we had not had match information, in other words, the identity required from other countries that have misused them in any way, I am not aware of it.
Ms. Trudel: I am not aware of any cases of misuse, but I can provide you with some statistics that we have on international exchange and the results that we got, just to give you a perspective of how often it has happened. As of June 4, we have received 220 search requests from 27 foreign countries. I have a list of the countries, and they include Austria, Belgium, the Czech Republic, Denmark, Germany, Finland, France, Georgia, Greece, Hungary, Ireland, Italy, Jordan, Liechtenstein, Moldova, Montenegro, Netherland, Portugal, the U.K., the U.S., where the majority of exchanges are done, Scotland, the Slavic Republic, Slovenia, Spain, Sweden, Switzerland and Yugoslavia. These are the requests that we receive coming in. We have sent 76 abroad, as of June 4, to be searched. These would be crime scene DNA samples sent abroad. As a result of all those exchanges over the years, we have had three hits.
The first hit linked a forensic crime scene sample in Canada from a sexual assault to a sexual assault that occurred in New York State. By the two being notified of the hit, the investigators were able to exchange information and discovered that they had interviewed the same suspect. Therefore, they focused on that suspect and were able to resolve the case.
Another example: We got an offender hit between a Canadian crime scene sample to a convicted offender in the U.S. If you want to read more about this case, I will give a synopsis, but it is in the 2004-05 annual report of the National DNA Data Bank. The case involved a Canadian female that complained of being sexually assaulted while vacationing in Mexico. Upon her return to Canada, a sample was processed by one of the crime labs and a male profile was obtained from the evidence submitted. That male profile was sent out as a search request to be compared to other databases. When compared to a U.S. database, a match resulted with a convicted offender in California.
At the time, the whereabouts of the suspect was unknown. He was in violation of parole and by doing more investigation they were able to locate him in a jail in Mexico on sexual assault charges. That was a second example where the exchange of information was very useful.
The third one can be found in our 2002-03 annual report. It was an offender hit between a crime scene sample received as a search from the United States against a convicted offender sample from the National DNA Data Bank. The case was a murder/sexual assault investigation that occurred in Ohio in 2001. In 2002, investigators in the U.S., in order to reactivate that cold case, featured the case on America's Most Wanted. As a result, a tip came to the RCMP that they might want to look at a suspect who was Canadian. It turned out that the suspect was in jail in Alberta under a different alias but the exchange of the information led to the resolution of the crime. There was an exchange of fingerprints to make sure they were dealing with the right person. The suspect was deported to the U.S. following completion of his Canadian sentence.
This gives you an idea of how often we receive requests from abroad, how often we send it and how often we get a match. We have had three matches since the first request in 2002.
The Chairman: That is very useful.
Senator Joyal: My question relates to the Auditor General's report tabled in May 2007 and the last recommendation at page 39.
The Chairman: Mr. Bird, do you have a copy of the report?
Mr. Bird: No, I do not have it and I do not know if I can answer questions about the labs because I deal with the National Data Bank, which is not part of the operations of the forensic labs.
Senator Joyal: I will read the last recommendation because it is linked to the question asked by Senator Fraser. At page 39, under the heading, ``Performance Reporting'', 7.87 states:
Recommendation. The RCMP should ensure that parliamentarians receive the information needed to hold the government to account for the performance of all activities related to the Forensic Laboratory Services, including information on turnaround times and the extent to which performance targets are met.
It says ``the RCMP''; it does not say, the lab or a service. It is a collective. The response of the RCMP printed in the report is as follows:
The RCMP agrees with government's commitment to transparency and accountability. It will explore mechanisms to report to Parliament more fully.
The RCMP agrees with the government commitment to transparency and accountability. What are you contemplating to allow parliamentarians to hold to account the Forensic Laboratory Services and the other services of the RCMP involved in the management of DNA data?
Mr. Bird: My knowledge of that is somewhat peripheral. It is my understanding that the RCMP is planning to beef up its annual reports to Parliament and to Treasury Board. They were changed as a result of Treasury Board policy to be less detailed. However, I believe they will go back and enhance the reports as they had been originally put out so that Parliament would get the same information consistently as opposed to having what appeared to be a change in the reporting information in the past.
My understanding is that it relates back to a Treasury Board policy on what should go into these reports. They will undertake to strengthen the reports, to make them consistent with previous reports, so they are reporting the same thing in the same way. You will see comparisons from year to year on the same basis. That is my understanding of the response.
Senator Joyal: Can we expect that, in the next report, according to the recommendation of the Auditor General, we would have more information on turnaround times and the extent to which performance targets are met? This bill, if passed, will add a significant additional load of work to your services. It will become important for Parliament to be able to measure how well you meet the target, how able you are to satisfy the additional work created by additional designated offences to be serviced and to maintain quality control and administrative regulations as a highly professional service. Can we expect that in the forthcoming report you will be able to satisfy those objectives of information?
Mr. Bird: You have put me in a position of trying to speak for Assistant Commissioner Joseph Buckle, Director of Forensic Science and Identification Services, who is responsible for their operation and what goes into those reports. From my understanding of the response to the Auditor General's report, I would think that you can expect a more detailed and fuller report in the future. The degree to which he will provide that I cannot say at this time because I do not know what is in his mind.
Senator Joyal: The information requested by Senator Fraser on how many requests you receive on a yearly basis from how many countries and for what kind of crime should appear in the report. That information helps Parliament to monitor the use of the data banks and the way in which that information travels. None of us would argue its value, given the examples cited by Ms. Trudel. My concern is securing the privacy of the information being sent. There are conditions that must be met before it can be spread around.
Ms. Trudel: The National DNA Data Bank is under the umbrella of the RCMP, but we are required by regulation to produce a report. We have a report tabled every year, and that is where that type of information would be added. If people are interested in finding that, we can add that in there. I think you were forwarded copies and electronic addresses to our website where you could see all our reports. We have our success stories, and we also have how many samples we receive on a yearly basis, for what type of offences and from what type of country. We have not been reporting the number of requests received from other countries, but that could be easily added to our report.
You were talking about the backlog in issues and response time. I would again make the distinction that this is not an issue with the National DNA Data Bank. Normally, we receive 350 to 400 convicted offender's samples a week, and usually they are processed and uploaded into CODIS, which is our database, within a week of receipt. In terms of the proposed new legislation and capacity for the National DNA Data Bank, the National DNA Data Bank was designed to process 30,000 convicted offender samples per year. We receive approximately 18,000 samples a year, so we are way below capacity right now. We could ramp up to 60,000 samples a year for convicted offender processing if we need to. We have capacity there. As you mentioned, the issue is populating the crime scene samples.
Senator Bryden: If I understood you correctly, Mr. Bird, you indicated that the report that the Auditor General audited was done in compliance with a changed level of reporting, that change being dictated by the Treasury Board. It was less detailed than used to be provided, and you will now be able to go back to that type of detail. Am I right?
Mr. Bird: My understanding is that there are two kinds of reports. There is the kind of report mandated under the DNA Identification Act for the National DNA Data Bank, which is a separate report, and then there is program performance reporting, required as a result of the budgetary process that reports to Parliament how the money is spent. That is the sort of data about the actual operations of the RCMP labs that do the forensic analysis that the Auditor General is talking about, and the reporting format for Treasury Board as a result of what goes back to the public accounts is basically constantly collected.
I recall Assistant Commissioner Buckle's evidence to you, indicating that they are doing matrix reporting, looking at all the through-puts and various backlogs or process elements they have so they know at any one time how the process is working, and they have committed themselves, as I understand it, to providing meaningful data in the annual reports that are tabled in Parliament. Hopefully, you will get more detail.
Senator Bryden: We also were told that there are greater resources being made available. I think we were told that the budget for doing this is $10 million. The RCMP is providing another $5 million right away, and there is another $5 million or $10 million within the next two years. There would be a lot more resources. That evidence was given when we were here before.
Mr. Bird: To add to that, I believe more resources are being added, and I believe you will hear that that will not have an instant effect, given the fact that they have to develop the capacity. They have to train and create it. The added capacity is not something they can just plug in. They have to develop personnel, buy the equipment, validate it and install it, all of that.
Senator Trenholme Counsell: The National DNA Data Bank has excess capacity now, but the Auditor General's comments that I have just reread here were regarding the Forensic Laboratory Services of the RCMP. In all of our discussions, we have to be careful to keep the two separate. The backlog, I believe, Mr. Chairman, is with the Forensic Laboratory Services — in other words, the samples coming in from crime scenes. They are closely linked, but the functions are quite different. One leads to the other in a number of cases. Is it correct that the backlog is not with the DNA data bank but with the Forensic Laboratory Services?
Mr. Bird: Yes, I would agree with that, and it is not just the RCMP labs. My understanding is that this is common to the provincial labs in Montreal and Toronto. They cannot meet the demand that the police are now asking for on forensic analysis of crime scene data. The data bank itself is a national police service taking the profiles from the Quebec labs, the Toronto labs and the RCMP labs and putting them into one index for comparison, but they are simply a service provider for the profiles they derive. They are only able to deal with the quality and quantity of those profiles as they are produced to them by the operational labs. There are different labs in the RCMP national data bank that can do the analysis for the Convicted Offender Index, which is a separate laboratory system that derives those profiles and puts them into the Convicted Offender Index, which is then compared against the crime scene profiles derived from the operation labs. It is a bit complex because you have two different laboratory systems producing inputs to two different indices which are then compared in the national database.
Senator Trenholme Counsell: When I used the word ``problem,'' I did not mean there is anything wrong happening, but it is a capacity issue with the Forensic Laboratory Services, and therefore that is probably a budget issue. You have only six laboratories, do you, across the country doing this forensic laboratory work?
Mr. Bird: There are six laboratories in the RCMP, not all of which are necessarily doing DNA work, but they may well all soon be doing that given the increased capacity. As well, there are two provincial labs — which makes eight labs sending information from crime scenes to the National DNA Data Bank.
Senator Trenholme Counsell: Is the issue the availability of qualified technician staff to do this, or is it a budget issue?
Mr. Bird: I believe it is both. You need the budget in order to hire the people, and then they have to be trained, and there is a lag time of a year or year and a half to get the raw analysts ready to do qualified DNA analysis off the bench for a crime scene. It is a higher standard in one sense, because they have to be prepared to go to court to testify in evidence as to the nature of what they derived from the crime scene evidence and whether it matches the warrant sample that usually later links an individual to that crime scene.
Senator Joyal: My question is more in relation to Charter issues and section 487.07(d) of the DNA Identification Act, under the heading ``Duty to Inform.'' I am taking it from the unofficial office consolidation for discussion purposes only. The bill amends that section, at page 11.
I shall quote that section 487.07(d):
(d) the authorization given to the authority of the peace officer and any other person under the direction of the peace officer to use as much force as is necessary for the purpose of taking the samples.
At 487.07(3), it then says:
A peace officer who takes samples of bodily substances from a person, or a person who takes such samples under the direction of a peace officer, shall ensure that the person's privacy is respected in a manner that is reasonable in the circumstances.
It gives me pause that there can be the use of as much force as is necessary for the purpose of taking the samples. How would that stand up under the Charter? The person is not a threat and is not under a physical condition of not controlling his or her impulse. Essentially, it is a person who refuses to submit. Normally, under our court system, a person who refuses a court order is sent to prison for contempt of court. That is the normal rule.
Yet, in the bill, we have a different set of consequences, whereby the peace officer or the person who is under the direction of a peace officer can use force. Does that bring to mind the Charter and what it says about body integrity?
Mr. Bird: If the peace officer were simply authorized by a convicted offender order from the court to collect DNA from a person who is subject to a conviction for the purposes of DNA data banking, or could be for a warrant, and the person did not want to cooperate, then the normal powers of section 25 of the Criminal Code would apply. Any time a peace officer is authorized by a judge to execute an order, he has a duty to do that. He would have the same authority under section 25 of the Criminal Code, which authorizes the use of as much force as is reasonable to execute that order. The person has the right to complain about excessive force, but if they are impeding a peace officer in the execution of his duty, then there is a potential offence. The courts have commented on the nature of the DNA sampling profile. Even if the person resists the kind of force used in these circumstances, it would be no more than restraint. The officer would restrain the person so they could take the sample. It might be more difficult to take a fingerprint from a person who is being restrained than to take a sample of a bodily substance. Either they prick a finger with a lancet, like the kind used for a diabetes blood test, or they can pluck a hair. The amount of force required in these circumstances is minimal restraint. For a person who will not open his mouth to let you take a buccal swab, there are other means to obtain a DNA sample.
The Chairman: Do you not think it infringes on the individual under the Charter?
Mr. Bird: I do not think so and the courts have commented on the nature of taking samples as being minimally intrusive as an invasion of privacy. It is a very low standard. If you read the Supreme Court decisions, you will find that they have said that based on the evidence available about the techniques used, it is a reasonable process, and they have been challenged.
Senator Joyal: On the basis of being intrusive to the privacy of the person, how do you qualify that?
Mr. Bird: It is a minimal intrusion according to the Supreme Court, given the nature of the proceedings and the process being used. Having been convicted of an offence, the individual has a reduced expectation of privacy. When the courts deem the person a potential problem to society in the future, then they think it is in the public interest to have the person's DNA in a data bank in the event the person re-offends and re-victimizes society so that investigators can quickly identify the person as a perpetrator of such offences. It is reasonable in our society for people to be forced to submit to this process as the result of a DNA data bank order supplied by a judge.
Senator Joyal: Can you provide us with the decision on which you base that answer?
Mr. Bird: The last decision was in Rodgers. I do not have the citation in front of me, but it would be fairly easy to obtain.
The Chairman: What year was it reported?
Mr. Bird: I believe it was in 2006.
Senator Baker: It is reported as something else.
The Chairman: We have the citation; it is R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15.
Senator Baker: Was it reported as Jackpine?
Mr. Bird: The two cases were tried together and the reports might refer to one or the other.
Senator Milne: Ms. Trudel, you said that you have the capacity in your labs to deal with a much greater number of samples. Do you have capacity in the equipment but a shortage of personnel? Where is the capacity?
Ms. Trudel: We have the capacity if the technology remains unchanged. We have sufficient equipment and we have been proactive in successfully hiring DNA analysts, and we have trained them. We have a full complement on our analysis staff. If samples come in, they are trained and ready to go.
Senator Milne: Do you have excess staff now or enough staff to deal with further samples?
Ms. Trudel: Yes, we can deal with as many as 60,000 samples. If it were bigger than that, we would have to reassess the resources. We have been receiving an average of 18,000 samples per year from convicted offenders.
Senator Milne: You have had three successful hits out of 230 requests internationally. How many hits or convictions do you have nationally?
Ms. Trudel: As of June 1, we had 7,251 offender hits between a crime scene sample from Canada and a convicted offender profile in the National DNA Data Bank Convicted Offender Index. We have provided leads in 1,117 forensic hits between a crime scene and other crime scenes. For example, such a hit would be an RCMP hit with a crime scene sample from the Montreal lab or the Toronto lab.
Senator Milne: Those are potential future offenders.
I will go back to Senator Fraser's concerns. Mr. Bird, when a request is made for a possible match by some other country, do we share with that other country or does that country share with us the nature of the crime over there? Do we analyze before we send them the information as to whether it would be a crime in Canada?
Mr. Bird: First, they send an Interpol form that they identify as a crime stain.
Senator Milne: That is from a crime in their country. Do you analyze the nature of the crime to determine whether it is a crime in Canada?
Mr. Bird: At this point, the sample will be run through the system to determine whether we have a match in our data bank. If we have a match, the report will go back. Further analysis will take place as to the nature of the crime. Is it a match of the crime scene investigation, in which case the investigating agencies may have to talk to their investigators, and they will decide — as they would normally do when you have a link to a foreign and domestic crime scene — vis-à- vis the information with respect to our investigation, because they may or may not have a suspect. That would be shared, and they would obviously at that point determine whether it is in their interest and what the nature of that investigation is.
At the same time, if it is regarding our Convicted Offender Index, then it would match to our criminal history unit, and that unit would determine under its normal rules how much personal information in the RCMP's data banks on criminal records would be shared with this country for this particular case. They would then look at the request.
Senator Milne: When they are sharing this personal information at that stage of the game, at that point do they analyze what kind of crime this person might be wanted for in another country, whether it would be constitutionally a crime in Canada or not?
Mr. Bird: They would know the nature of that crime before they would respond and govern themselves accordingly. It would be definite that they would ask the purpose for sharing the personal criminal history.
Senator Milne: Do they always know the nature of the crime?
Mr. Bird: They would always know the nature of the crime.
Senator Milne: Perhaps the gentleman with whom Mr. Bird is consulting could come to the table and give us the information.
Robert M. Thompson, Superintendent, Director Canadian Criminal Real Time ID Services, Royal Canadian Mounted Police: I have been a police officer with the RCMP for 35 years. I am currently and have been for the past seven years director of the Canadian Criminal Real Time Identification Services. I am responsible directly for the acquisition and maintenance of a national repository that is fingerprint- and criminal records-based, and we continue to share data in the same way DNA would be but based more so on fact that there is biometric fingerprint attached to whatever data we are sharing.
Senator Milne: Rather than a DNA bar code or series of numbers?
Mr. Thompson: That is correct.
The Chairman: Are you located in Ottawa?
Mr. Thompson: That is correct.
Senator Trenholme Counsell: I heard the words ``personal information.'' It is my understanding there would be no personal information unless you had a match and had gone a long way in terms of scientific evidence and negotiation with Canada and the other country. It would only be after you realized that you had a person identified to a particular crime in another country or in our country considering international relations that there would be any personal information. Apart from that, it is all DNA; it is all science. When does the science cease to be the only form of communication and any personal data come into play?
Mr. Thompson: As Mr. Bird explained, once there had been a hit this information as a hit/no hit would be sent back to the originating country. This would accommodate an opportunity for that country to further its own investigation. They would then come back, potentially, asking other questions. In my service, those questions would have to be attached to a fingerprint. In my world, we are not concerned whatsoever about the name that a person uses in any kind of offence. It is a biometric base. The host country or the country sending the request would send in the fingerprint to the Interpol office in Ottawa asking for any information they may have associated with this set of fingerprints. This would be as a result of the hit/no hit. When it would arrive at my office, we would certify that the fingerprints they sent to us belonged to a set of fingerprints that we have in our possession.
Although we have 4 million sets of fingerprints here, we should not be assuming that 4 million Canadians have records. They are just 4 million sets of fingerprints from persons who may have a criminal record in Canada, regardless of what country they are from.
Having said that, criminal record information held is, from our perspective, public domain data. In other words, a person has been charged in a court of law with having committed a particular offence and has received a disposition. That disposition may be a finding of guilt for which the person had to serve three years in prison.
We say it is within the public domain because, regardless of the information I hold, a person can go to the courthouse in Ottawa, pay their money, go through the court records and extract data that is publicly available, or students can go see a trial.
Once we have confirmed that fingerprints are identical to the fingerprints we hold, providing it is information we can lawfully share with other country — if it happens to be fingerprints that are associated to a youth offender, the law prohibits us sharing that information with another country if it matches a youth offender. Depending on the release rules driven either by a ministerial directive or by a statute, we will determine what data is shared. That data is comprised of name, date of birth, last known address and any criminal data that we would have that is conviction- based. Consequently, if it is a non-conviction, we would not be sharing that data.
Senator Milne: When we are sharing this information with other countries, what happens when you are sharing information with a country like Great Britain where they fingerprint and save DNA samples from everybody they can possibly get it from? They do not necessarily have to have been found guilty of a crime. They never destroy it; they keep it. Once they have it, they keep it.
Do we have a requirement that if a person is found innocent it be destroyed?
Mr. Thompson: Are you speaking of the DNA?
Senator Milne: Fingerprints are not part of what we are talking about here today. It is the DNA that what we have to deal with in this particular bill.
Mr. Bird: The conditions attached require them not to retain it but for only as long as it is related to the prosecution of the criminal offence. If they no longer have a prosecution purpose for that DNA, then they should not be putting that in their national data bank in that form. All they should be retaining is the DNA profiles that they obtained from their citizens under their law, which has been found by the House of Lords, as I understand it, to be constitutional in the U.K. With respect to any of the crime stains they derive from their crime scene data, it presupposes we have a match with one of the indices which they will retain under their law, but at the moment they will not get any of our DNA profiles except for potentially anonymous crime scenes. If it matches nothing there, they should be destroying it, and we have nothing further to add.
The general international policy, as I understand it, would be that it is a search-only entry for foreign DNA profiles that are sent in, and that would be the convention with respect to the U.K. and the U.S. Every country that receives foreign only search their data bank. They do not retain it in their data bank, and if there is no match, it is no longer kept, although there may be protocols that say ``keep for six months and re-search.'' Sometimes it is one-time search. You can put a limit on the number of searches that you send and for the length of time for that search to be carried out, but after that it will be no longer retained by them.
Senator Milne: Do we put a limit on it?
Mr. Bird: When we send out a crime scene, it is only for the investigation. If they have no purpose for it — it matches nothing — they should not be retaining it.
Senator Baker: I want first to congratulate the witnesses here today for the job they are doing. I have some short question relating to the bill.
First, Mr. Thompson, relating to fingerprinting, the bill uses the word ``may'' — a person acting under the authority of 487.055 or 487.051 may take fingerprints from the person for the purpose of DNA identification. Are you happy with ``may''? Do you think it is strong enough? Should the word ``shall'' be there, or do you wish to comment?
Mr. Thompson: Inasmuch as Ms. Trudel has DNA close to her heart, I have fingerprints close to mine.
Senator Baker: That answers it, I think.
Mr. Thompson: In all criminal justice systems, there are three ways to identify someone — these are police systems — name, date of birth and a file number. With the exception of my world — and as I said earlier, it does not matter to me what you want to call yourself; legislation exists in each province such that you can change your name legally. However, you cannot change your fingerprints. If it is all about integrity and there is an expectation that I should be able to say in the national repository that you are who you are in my view, in my professional opinion, a fingerprint will always tell me.
Senator Baker: That is not the question, though. As you know, under the Identification of Criminals Act, someone who is charged with a hybrid offence, whether it can be prosecuted by indictment or summary conviction, goes in and the first thing that happens is they have their photograph taken and then their fingerprints. They have to go to court the next day, following their arrest. In this bill, it says ``may take fingerprints.'' That was my question.
Mr. Thompson: The Identification of Criminals Act creates the authority for a police officer to take fingerprints for a hybrid or indictable offence, no summary conviction offences unless it is included hybrid, but there is no obligation in law to take those fingerprints within the Identification of Criminals Act.
Mr. Bird: If I could be helpful, I think I might shed some light. You will see in the Identification of Criminals Act that ``the following persons may be fingerprinted'' and it includes any person ``who is in lawful custody charged with or convicted of'' an indictable offence. What we put in originally, and this is already in the law, is the authority with respect to taking fingerprints for persons who are subject to the DNA Identification Act. The exact authorities are not the same, so we had to give the police officers that authority to take it. We then put it in the DNA Identification Regulations, the requirement that they have to put in their kits when they sample a fingerprint form with the fingerprints to be accepted. If they want their fingerprints to be accepted into the National DNA Data Bank Convicted Offender Index, they have to have a fingerprint form. Hence, we have been given the authority to take it, they can use reasonable force, but if they do not take it we will not accept their kits.
Senator Baker: Always, fingerprints are taken if one is charged.
I will get to a section of the bill that establishes a hearing to be set within 90 days on which a person is sentenced or discharged under section 730, which as you know is conditional or absolute discharge section. A special hearing before the court must take place within 90 days of the sentencing to consider the order about which we are talking, and we hear constantly of courts being overworked, that cases have to wait for months and months to be heard, and this is another imposition upon them to set a date within 90 days.
Did you check with the provincial jurisdictions, because it is their courts, as to whether there is a real problem with this? The way the bill reads, if you do not do it within 90 days you cannot do it?
Mr. Bird: My understanding is that you have 90 days to set the date for the hearing, to determine this, so the hearing date could be later, but this is a cut-off date for the Crown in particular to say they forgot, or the court forgot, to deal with this matter, they have to come back within at least three months and ask to have it set down for hearing and then, after that, the matter can then proceed.
The Chairman: The hearing can be a year later.
Senator Baker: This is another imposition on the judges in the courts throughout the country who claim they are overworked now.
Mr. Yost was discussing something with you a moment ago, and I want to reference something he referenced during his hearing, Mr. Bird, and perhaps you may wish to comment on it because he felt you were better prepared to do this given your extensive court experience as a litigator, and it is this: Throughout the bill, the words, and the act, of course, introduced the words that say ``as soon as feasible.'' We are used to ``as soon as practicable.'' In French, this bill says ``as soon as possible.'' There is a whole line of litigation on this subject. The litigation says, at least in Newfoundland and Labrador, that ``as soon as practicable'' — and I showed this to Mr. Yost following the committee hearing when he appeared — that ``as soon as practicable'' does not mean ``as soon as possible'' but it means ``as soon as feasible.''
I realize the phrase ``as soon as feasible'' is in other portions of the bill right now, but here, where we are introducing huge sections, did you think about the fact that in the French it says ``as soon as possible'' and here it says ``as soon as feasible'' and according to case law these are not the same things. Did you think about ``as soon as practicable,'' which could mean the same as ``as soon as feasible''?
Mr. Bird: I am a solicitor, not a litigator, so my experience in the courtroom is very limited.
Senator Baker: In civil, it is pretty extensive.
Mr. Bird: The point of this discussion is that I was in favour of returning to the language that had originally been in the act, which is ``as soon as feasible.'' I agree with my learned friend, Mr. Yost, that to remove questions that the police have not acted within the time frame that the law permits we would make it as generous as we can, to say if there is any question about ``as soon as possible'' — meaning you could cross-examine a policeman and ask whether it would have been possible for him to take it earlier if he had driven 200 miles an hour and broken the law to get there in time to do this, and the answer would probably be yes. To avoid that, to say what we intend here, is for the police to execute these things expeditiously and there is an onus that these things will not sit there and not be done, that they do this, but not to have the potential for the system to be challenged later that the execution of this was unlawful. To remove that potential away from the police, we asked that it be returned to the original language ``as soon as feasible,'' which was over the dead bodies of our legislative drafters, who do not like it, but we prefer it.
Senator Baker: The chair does not like it, I can tell you that.
I have another question. The commissioner shall destroy stored bodily substances of a person ``without delay after the person is finally acquitted.'' I do not know if you want to comment on ``finally acquitted,'' which means that someone's bodily substances have been stored prior to having been found guilty of an offence. Second, one year after the day on which the person is discharged absolutely under section 730 of the Criminal Code, or three years after the day they are discharged conditionally. My question is this: Are we approving here a scheme in which people who are discharged absolutely — to be discharged absolutely, the judge has looked at everything, criminal records, everything, and the judge has said it is not fair. Yes, the person is guilty but it is not fair to put that person in an institution. If it is one step beyond that, there are conditions attached. What you have is bodily substances collected from somebody who is not guilty of anything. Second, if you are absolutely discharged, they are still kept for a year.
How can you justify that?
Mr. Bird: We have anecdotally been advised that in certain cases people will plead to an absolute discharge and voluntarily say, ``I would like a DNA data bank order because it will be there for a year to ensure that am I of such character that can be trusted in society with an absolute discharge, and that my DNA will be kept on record for the period of time those records are kept in case I re-offend.''
They may be voluntarily suggesting to the court that such an order should be issued to get an absolute discharge, and this will ensure they are not likely to re-offend during that period for which there is an absolute discharge.
Senator Baker: I will go on to something else because we could get into and argument on this.
In this bill, it says a warrant of arrest or committal issued by a justice or a provincial court judge may be executed anywhere in the province in which it is issued. I realize that a provincial court judge has jurisdiction in the province. Then another section of the bill says a peace officer who has jurisdiction over the person, authorized under the same section, 47.051, can take samples of bodily substances and may cause samples to be taken to any place in Canada in which the person subject to the order or authorization is located.
Is there any confusion in your mind that under one section you are saying only in the province in which the order is issued, and in other case a police officer can execute it anywhere in Canada?
Mr. Bird: It is slightly confusing — I do not have a copy of the order in front of me at the moment.
Senator Baker: You have all those orders, you mean forms.
Mr. Bird: It gives you a jurisdiction — within the judicial district. The judge may issue it for Peel Region, for example. If the person is found outside that region, we made it clear that it could be executed within the province.
We also have an endorsement system. The judge's order is only good within the judicial area in which it has been issued, so if found in another province we would have to have that endorsed and backed. Then the authority to take that would be clear, so that any peace officer in that jurisdiction could exercise the execution.
We also have a new warrant scheme. We want to make it very clear that if the person has not appeared for sampling that that warrant could be executed wherever the person is found in Canada. That is a different authority than the execution of the order itself.
We have orders and warrants, and they are treated differently with respect to who issues them. The warrant will get a Canada-wide ``authority'' for the person so you do not have a problem with this inter-jurisdictional escape between provinces.
Senator Baker: Normally, the courts decide whether a 487 warrant is good on its face. In other words, there is a lot of case law in which warrants have been ruled to be of no lawful effect because there is an error, either on its face or some other problem.
For the first time, you have spelled out the possible errors in this bill. You have identified a clerical error; here is what can be done. Then you have said that if there is an error that does not affect the substance of the warrant — is this something new? Whose idea was this? Why do you have it in such specificity in the bill?
Mr. Bird: We are trying to deal with something called non-designated offences. In essence, these are orders we have received in the National DNA Data Bank that do not appear to comply with the judicial authority to issue them.
Senator Baker: They have been executed.
Mr. Bird: They have been executed but they have not been entered into the data bank; they are in limbo. We believe these are not correct orders and may affect the integrity of the data bank if they match people because we do not see the lawful authority. In our view, it does not look like the executed orders are correct. They have authorized the police to do it, they have done it and we have received them. Now we are looking at it and saying we cannot put this on our list of designated offences.
What do we do with these? The police lawfully executed an order. Does the commissioner of the RCMP respect or not respect the execution of this order that appears, on its face, to be an error? We developed a system in the proposed legislation to allow us to go back to the Attorney General of the province to seek his or her opinion on whether this was validly taken. If he says this is not a designated offence, that is sufficient authority for us to destroy the order.
Senator Baker: The obvious question would be that if somebody is arrested on a facially defective warrant then perhaps the person can apply under section 7 of the Charter to be found innocent of the charges.
Mr. Bird: This is not a charge; simply a DNA data bank order.
Senator Joyal: On that very point, there is a very important element here to take into account in relation to the Charter. The Rodgers decision you referred to was split four to three. There were three dissenting judges. Justice Fish wrote the decision for the three dissenting judges and concluded that the DNA data bank constitutes a new and substantial intrusion into private life.
The decision of the majority, written by Justice Charron, qualified the crime for which the court holds the validity of the act. She says:
[Translation]
There are three classes of previously convicted and sentenced offenders: the first is persons already declared to be ``dangerous offenders''; the second is persons convicted of ``more than one murder committed at different times''; and the third is persons convicted of ``more than one sexual offence.''
[English]
Originally, the data bank was conceived for the most serious crimes. Now we are expanding the designated offences. It is like throwing a stone in the water; the ripples widen and the principles the court holds for the most serious crimes are being extended and stretched.
I did not have time to read through the entire decision. However, this was a decision of four to three at a point in time, in my opinion, as we say in French, the elastic will break.
I am concerned because three judges concluded that this is a substantial intrusion into private life. When you use it, with the sub-designated offence on page 4 of the bill, ``escape and being at large without excuse,'' we are very far away from a dangerous criminal who has committed many murders or has been found guilty of more than one sexual offence.
I was not against the data bank from the beginning. This committee was the first to study that bill. Now, we are really into the process and you base your conclusion on a decision that was based on the first concept of the data bank. We have to be conscious of what we are asking for here when we add definitions and try to make the best use of the bank. I am totally in favour of that, but if we go beyond certain steps, we might have a problem with the Charter.
Mr. Bird: You should note that the Rodgers decision is looking at what was called a retroactive scheme. These were offences committed before the legislation was passed. It went back in time and authorized a very limited number of categories of person in the categories of dangerous offender, multiple murderers and multiple sexual offenders to be selected for identification. They had to be either under sentence or serving time or under a judicial order of some kind. These people were selected on the basis that it was a very limited number.
The prospective scheme, and there is some expansion in Bill C-13 and Bill C-25 that is retroactive but limited, is with respect to those cases that are currently coming up, so anyone committing crimes today will know that they are subject to this sort of regime. They would be eligible as this expands to be included in a DNA data bank.
From a social policy point of view, I would encourage you to consider the fact that many lesser offences, such as break and enters and robberies and lesser property offences that have been proceeded with summarily have led to and do connect to serious murders and sexual offences. There is a progression potentially in sexual offences, particularly, but serious offenders have a propensity to break the law for minor offences, so collecting DNA at crime scenes for minor offences is also authorized here, because you have to be a designated offence to go on the crime scene index. There are two aspects. One is collection from convicted offenders, where the judge looks at the offender and decides that person's DNA should go in the data bank. The courts said in the Rodgers decision that even judicial oversight is not required, but they believe it is a good social policy. That crime scene to be matched is also a designated offence in legislation, and the police, by collecting and solving these crimes, are enhancing public safety. Many cases in the statistics that the RCMP have in the National DNA Data Bank link these minor offences to very serious crimes. I cannot give you the exact statistics, but perhaps Ms. Trudel can.
Senator Bryden: There has to be some point at which the integrity of the individual's person and the privacy of the individual trumps the protection of the public. You can only go so far.
I had occasion to spend some time dealing with crimes against animals, and there is a theory that an individual who is cruel to animals may grow up to be cruel to people. I do not know how much evidence there is for that. However, what came to mind is that if a person is convicted of an offence under the Criminal Code of causing unnecessary pain and suffering to an animal, would we take his DNA because he is likely to show up, according to this theory, as somebody who will do damage to people when he is 65?
There is a point. We have a Charter for a reason, and normally the Charter allows interference of search and seizure. It is covered by section 1 of our Constitution, which says that it is reasonable in a free and democratic society that you can abridge this. This committee in particular constantly has to weigh the interests of public safety against the privacy and the integrity of a person's own being. We tend to get into flavours of the month or flavours of the particular government that is in power. Liberal governments often get accused of swaying too far to the side of the freedom of the individual, and some rightwing governments tend to swing to the other side. This committee has the responsibility of at least trying to make a judgment on whether we are going too far one way or the other.
Senator Trenholme Counsell: I would make a comparison between medicine and justice. We talk about the art and science of medicine, and the science grows incredibly fast and the art tries to continue to exert its place. We have here an example of the art and science of justice. As long as the technology and the rules are closely adhered to, this is a giant step forward in justice.
Mr. Bird, because of all the reading I have done on this, a concern arose with respect to moderate matches. On February 27 of this year, at a committee in the House of Commons, you made a statement, and I need one more reassurance about this. You said, ``There will be no sharing of personal information or even the resolution of a potential crime scene until it is resolved between the scientists whether or not they have a match or a close enough match that they want the information about the offenders or other crime scenes that it would link to,'' and you were talking about the international sharing of information here. It is a match or it is not. You used the term ``close enough match.''
Perhaps only a scientist can answer this, but when I see that, I have a concern. I am very conscious of the accuracy of data. There is no art there. It is all science. The accuracy of data is something that I understand and appreciate and am very concerned about.
Mr. Bird: If I could explain better than my testimony might have, I was trying to encapsulate the proposed new amendments to section 6 in the bill — which requires that if there is a moderate match — in other words, a determination that, for that criminal offence, the profile that they have cannot be excluded as a possible match, or they may have a number of profiles because it is a limited number of alleles so you have the potential for more than one match, and they say, ``Do we have a match?'' — a scientific discussion has to take place with regard to whether it is it this match or this profile. All they are looking at is these anonymous numbers you saw at the bottom of page 13. There is a list of those. They are trying to determine whether those profiles match another that appears to be similar, but not all the elements are there. There may be missing parts. They may say, ``We have more than you do. Is this the one? Is there a reason for that?'' No personal information will be exchanged until the scientific discussion is finished. The scientists reasonably conclude that they cannot be excluded and that there is a possibility that this is matched.
The only way to resolve this beyond that is for the police to investigate. Was the person whose DNA we have in jail or some other country at the time this commission took place in your country? If that person can be excluded by police investigation — that is when personal information can be shared. Nothing can happen until they reach that point.
It is not scientifically possible to exclude scientific reasoning that you have a match. It is still possible there is a match. At that point, information is exchanged. However, no information will be exchanged until that conclusion is reached. That occurs between scientific analysts.
I hope that clarifies what I was trying to say in the House of Commons committee.
Senator Trenholme Counsell: Are you saying it is not possible to exclude? You have not proven by the data that you have the match, but it is not possible to exclude. There is a difference.
Mr. Bird: That is correct. It is not possible to say this is not a match. We cannot come to that scientific conclusion, so it is still open for other means to determine. It may be done through police investigation or some other way, but the personal information related to those profiles may then be exchanged or investigations connected together to link them.
There are two possibilities. We do not know which way it will go, whether there will be personal information exchanged when they get to the profiles we have or somehow related to a Canadian investigation file. Then information can be exchanged. However, it is not until after that conclusion has been reached that it is not possible to exclude.
It is put in a negative because we are still in the dark as to whether this is a perfect match. High stringency matches mean we have enough profile so we can determine positively. However, if it does not match, no information is ever released.
If we have an exact match, now we can talk about information. If we have a do not know, how many can we exclude by scientific analysis, and then they go through the process of elimination. We weed the numbers down of potential matches, for example, if there is more than one name that could be exchanged or more than one investigation. It will save the police a lot of time if they can scientifically narrow it down to a limited number of investigations or people.
Senator Trenholme Counsell: If you look back at your work over the years, has this final process of uncertainty and then a judgment call consumed a lot of time?
Mr. Bird: My understanding is that it is a constant problem in DNA analysis. This is a rule as opposed to an exception. That is why we have it in the domestic legislation for exchanges domestically. We had to have that to allow the scientists to get to the truth as soon as possible. Otherwise, we have to say that it is not an exact match, we cannot give you the profile, sorry.
Ms. Trudel: From a forensic perspective and with respect to the National DNA Data Bank, we are fortunate because biological samples such as blood or hair samples are collected on a collection card. They are fresh. They are sent to the lab and analyzed right away. As you will see, we usually have a complete DNA profile at all of the 13 regions of the DNA that we analyze.
Unfortunately, this is not the case with crime scene evidence. Crime scene samples are left out in the open, sometimes in warm temperatures. Let us face it — all of our body fluids are biodegradable. With time, you might lose some of that genetic information within a crime scene sample. When you try to do a comparison, you might have some of the region of DNA that is not available from the crime scene sample.
When you compare that to a complete profile of an offender, you need a discussion. All forensic labs have criteria to decide what is present or not present in a genetic profile. They might see some genetic information, but it is below the threshold for them to call it.
For example, at one region of DNA in the crime scene, all they might see is Area Number 18, whereas the convicted offender queried and identified through the search might be 18/19. When that discussion takes place, it is close. You are missing the 19.
The question then becomes, the scientists must discuss why you are missing Area Number 19 in the crime scene sample. Then the scientists at the crime lab can look at it and determine that there is a region in which they can see degradation. When they look at the actual profile, they can look at the quality of the profile and say there is evidence of degradation. Therefore, we can explain why this particular part of the profile is missing. That is why at that time the information could be relayed to them.
That information must not be forgotten. It is only a lead. At that time, they will have to apply and get a warrant. They will get a warrant sample and redo the comparison. When that is done, they will write a report in court. As we mentioned yesterday, based on the number of regions of DNA where they see a complete match everywhere, they will develop a random match.
When the scientists issue a forensic report, they will say there was not a complete match on the 13 regions of the DNA. It was only in 10 or 11 regions because of degradation, and this is the weight that could be attached to that statistical analysis. This is the weight that could be attached to this finding when that report is presented either in court or within the prosecution. Therefore, the less genetic information found, the less weight it is given.
Another situation is that the technology is so sensitive that you might be able to identify mixed samples from a crime scene. They are not always from one source. For example, if there were a fight, you might have a mix of blood samples from two individuals. You have to resolve that because a moderate match is one where we will be able to see this convicted offender sample included in that mixture.
Then you need to discuss with the scientists at the lab, who have the visual tracing of the mixed profile, and find out if it is a real match. If that is the case, only then will the information be shared. Again, based on the interpretation guideline, they will assign the necessary weight to that finding when they get a warrant sample for comparison.
The Chairman: Thank you for that. Mr. Bird, Ms. Trudel and Mr. Thompson, on behalf of the committee, thank you very much for appearing today and answering some very difficult scientific questions. It certainly helped us in our deliberations.
I would have liked to ask questions about the person you described as having reduced expectation of privacy, but I will save that for some other time.
DNA is becoming more and more common. It seems to me important, as Senator Bryden raised, to balance a person's sense of privacy with the needs of the police in relation to all of these DNA samples. We have had a good discussion of that here today, and we thank you for that.
We have come to the end of our witnesses. Are there any amendments that anyone is preparing? If so, could they provide copies as soon as possible to the clerk in both languages? If there are no amendments, when we have clause by clause tomorrow, we can determine how we want to group the clauses when dealing with that.
Are there any amendments that honourable senators know about now that might be forthcoming in this bill?
Senator Fraser: I would suggest some observations but not amendments.
The statistics have persuaded me that my concern about a robust control regime on international sharing of information is more for the future than for the present, but it is a real question for the future.
I would like to suggest that we might append observations urging the government to rapidly devise a robust regime and that one of the criteria would be that the criminal investigation in the other country for which our information is being sought should be an investigation of an act that would be a criminal offence under an indictable offence under Canadian law, if committed here.
The Chairman: It seems that Senator Joyal and Senator Grafstein had many debates about this in the Senate a few years ago.
Senator Fraser: I think that was on the extradition bill. I think we retained some such language, did we not? It strikes me, therefore, as a useful precedent.
I will take 30 seconds to say that, 35 years ago, I was floored when, with a group of Canadian journalists, I was taken on a tour of, among other things, the FBI's computer installation in Washington and we were informed by a proud FBI official that they had so much co-operation from the RCMP that they had the addresses of every draft dodger who had come to Canada. This was at the height of the Vietnam War. I do not know if that is true or not, because we only had the word of the FBI computer manager for it, but it was enough of a jolt to me that I realized that it is important to have robust control regimes so that the work that needs to be done is done but at the same time the values that Canadians wish to protect remain protected.
Senator Joyal: On the same basis, and I will link my question to the intervention of Senator Fraser, we should refer to the recommendation of the Auditor General that parliamentarians should receive better information to hold governments to account in relation to that kind of activity. It is part of our responsibility to monitor and to make sure we dispose of the information, to be able to evaluate the impact of the bank and the development of the data bank over the years.
As you will have understood, Mr. Chairman, governments in general come back with additional elements in a year or two years and we lose track of what we have done to the system. It is a very important element that we dispose of the information to be better able to assess the system we have put into place and make sure we maintain, as I said in my intervention and as other honourable senators have said, the protection afforded to Canadians through the Charter is kept in mind when doing that. It is certainly part of our concerned shared around the table.
The Chairman: Mr. Bird indicated today in his evidence that Treasury Board changed the guidelines for how much information parliamentarians were getting and now they are going back to the old system where you got more. I think it would be a good observation to include.
Honourable senators, that will conclude that part of our business. May we conclude to other business?
May I ask Margaret Young to come up to the table next to Senator Joyal, please?
Honourable senators, I should like to move the following motion. Is it agreed that the Standing Senate Committee on Legal and Constitutional Affairs do thank Margaret Young, upon the occasion of her retirement, for her excellent work for the committee and for her dedication to the service of the Senate over her 24 years of working for Parliament?
Hon. Senators: Agreed!
The Chairman: Honourable senators, that is on the record, so the meeting is now officially adjourned.
The committee adjourned.