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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 4 - Evidence for March 26, 2009


OTTAWA, Thursday, March 26, 2009

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:45 a.m. to study on the provisions and operation of DNA Identification Act (S.C. 1998, c. 37).

Senator Joan Fraser (Chair) in the chair.

[English]

The Chair: Colleagues, good morning, I see a quorum.

Just before we go to the main business, I will ask committee members to consult the papers you have, where you will see a budget for review of the DNA Identification Act. This relates to the fact that the steering committee did agree that it would be very helpful for us to visit the National DNA Data Bank. To do that, we would have to rent a bus, which requires a budget. The total cost is $1,300, including miscellaneous expenses.

Does anyone wish to discuss this item?

Could I have a motion then?

Senator Milne: I so move.

The Chair: All in favour?

Hon. Senators: Agreed.

The Chair: Opposed? Abstain? Carried.

We also will need a motion that in light of the second report of the Standing Committee on Internal Economy, Budgets and Administration, this committee withdraw its previously submitted budget application for its study of the act to amend the National Defence Act court martial for the 2009-2010 fiscal year.

Jessica Richardson, Clerk of the Committee: The second report of the Internal Economy Committee provides that all working meals for committees are to come out of central budget. Since this application was for working meals only, it is not needed, but we need a formal motion by the committee to withdraw.

The Chair: Do I have such a motion?

Senator Milne: I so move.

The Chair: All in favour? Opposed? Abstentions? Carried.

Senator Milne: Is it not our usual practice to simply not spend the money, and it goes back to Her Majesty?

The Clerk: It ties the funds up such that they cannot be used otherwise. The total of funds tied up is much less than having it come out of central budgets. More money is available for committee trips and other activities.

The Chair: We will proceed with the main meeting.

Honourable senators and witnesses, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.

[Translation]

We are continuing our study of the provisions and operation of the DNA Identification Act. We began this study yesterday, listening with great interest—it must be said—to Dr. Ronald Fourney, who is the Director of RCMP National Services and Research and is in charge of the RCMP DNA Data Bank.

[English]

We are fortunate to have with us today from the Department of Justice Canada, Mr. Greg Yost and Mr. David Bird; and from the RCMP, Mr. Ronald Fourney, whom we are glad to have again, and Corporal Jennifer Derksen.

I understand that you have conferred among yourselves and will speak in the following order: Mr. Yost, Mr. Bird, Corporal Derksen and Mr. Fourney.

Mr. Yost, please proceed.

Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you, Madam Chair, honourable senators. It is a pleasure to be here. I understand that the Department of Justice Canada paper for the Senate review of the DNA Identification Act has been distributed to members of the committee.

I will begin by discussing the role of the Department of Justice and the use of DNA in the legal system. DNA evidence was being used in courts in Canada in the 1980s. The Department of Justice was involved in the amendments in 1995 to enact provisions for obtaining a DNA sample from the suspect and when the legislation to create the National DNA Data Bank was developed in the mid-1990s. Mr. Bird and Dr. Fourney were involved fully throughout that process from the RCMP side. I became involved in the file in 2002 and became lead counsel in 2006. The department consulted stakeholders in 2002 on issues that had arisen that led to Bill C-13 and Bill C-18, which have been in full force and effect since January 1, 2008.

[Translation]

I believe you are aware that the courts have supported the present system. In the Rogers decision, Madam Justice Charron wrote:

There is no question that DNA evidence has revolutionized the way many crimes are investigated and prosecuted. The importance of this forensic development to the administration of justice can hardly be overstated.

I feel that an analogy should be made with finger-printing and other identification measures associated with the application of the Act. The provisions respecting the DNA data bank in the DNA Identification Act and the Criminal Code are designed so that the new DNA analysis techniques can be used to identify known or possible offenders. The DNA Identification Act is meant to be a modern complement to the Identification of Criminals Act. The procedure followed is not at issue and does not need to be described again in the present matter. Nobody is disputing that DNA sampling causes minimal harm to the offender's physical integrity.

[English]

The Department of Justice issued a paper that explores the legal issues with respect to the information that can be put into the data bank, when the DNA profiles can be removed and what use can be made of the DNA profiles. The Department of Justice has no role or responsibility with respect to the operation of the system — for example, the fiscal and personnel challenges of the system.

The paper begins with the most important issue of the basis on which the DNA sample will be taken: on court order after conviction, as it is done now; automatically on conviction, as it is done in most states in the United States; or on arrest either for all offences or for certain offences, as it is done in the United Kingdom, 13 American states and 18 European nations. The choice of the model for collection has a dramatic effect on the number of profiles in the Convicted Offender Index, COI.

Under the current Canadian system, when the National DNA Data Bank began operations, it received about 9,000 convicted offender profiles per year. This gradually increased so that the National DNA Data Bank received about 18,000 samples in the year prior to full proclamation of Bill C-13 and Bill C-18. The number has increased to about 32,000 as a result of amendments to Bill C-13 and Bill C-18. Making DNA sampling automatic on conviction of all primary and secondary designated offences could result in 100,000 profiles annually. If the samples were taken on arrest, there could be 175,000 samples annually. The more profiles in the COI, the more matches there will be with crime scene DNA profiles, although it is not a simple linear progression.

The other issues, while important, are not likely to have a dramatic impact on the detection of offenders. For example, the issues paper discusses the current inability to take DNA from persons who have committed their crimes outside Canada. Canada has been accepting the transfer of only 80 or so such offenders per year. Similarly, kinship analysis, while undoubtedly a hot topic, is unlikely to result in many matches because it can be highly demanding of police resources.

The question of creating a DNA missing persons index has been studied extensively. I believe it is fair to say that there is support for the concept. Creating the legislative framework, however, is the simpler part. With everyone demanding more use of DNA for solving crimes, finding the resources to make a DNA missing persons index work on the ground will be a challenge.

David Bird, Counsel, Legal Services — RCMP, Department of Justice Canada: Thank you for allowing me to be here today. I have been asked to briefly describe the practical problems that the present DNA legislation imposes.

Although the usefulness of forensic DNA evidence at trial and the investigative value of the National DNA Data Bank in linking serial crimes and in identifying new crimes that are committed by the previously convicted is not questioned by police and prosecutors, they have questioned the required process to obtain DNA samples and the restrictions on what DNA information the National DNA Data Bank can accept and report.

The following five problems arise in having a convicted offender's DNA profile uploaded to the National DNA Data Bank: First, at the end of a trial, the police, prosecutors and courts have the burden of deciding whether a conviction qualifies as a designated offence for the purposes of issuing a DNA data bank collection order; they have to properly complete the required DNA data bank order; and transmit the order to the police for execution. Mistakes are made in addressing all three of these requirements, and often the requirement for a DNA data bank order is simply forgotten.

Second, if errors are made in completing the court forms, the National DNA Data Bank must return the defective order and the police must then ask prosecutors to obtain a new corrected order or the National DNA Data Bank must obtain a legal interpretation on whether the offence qualifies for acceptance in the data bank.

Third, the police do not always have the resources available to execute the National DNA Data Bank orders, fail to pass the orders on to the jurisdiction where the person is transferred to, or cannot locate the offender in time to carry out the order as required by any conditions set in the order.

Fourth, substantial police time is required before executing an order to verify on the Canadian Police Information Centre, CPIC, whether the person's DNA is already contained in the data bank. If the DNA is already in the data bank, another form must be completed and forwarded to the National DNA Data Bank to explain why the new order was not executed. It is also necessary to report back to the court. A separate form is required for that.

Fifth, the National DNA Data Bank also spends considerable resources to verify the information it receives to request corrections to orders, seek legal confirmations and remove DNA profiles and destroy the DNA samples when DNA orders, convictions or criminal records are quashed or required to be set aside.

Two problems relate to what can be accepted by the data bank. First, victims' and deceased persons' DNA profiles cannot be sent to the National DNA Data Bank for identification or possible linkage to unsolved crime scenes. The National DNA Data Bank legislation does not allow the uploading of a known victim's DNA profile to the Crime Scene Index, CSI. Without the victim's DNA in the National DNA Data Bank, the opportunity to link serial crimes together may be missed.

Second, the other submission limitation is that not all crime scenes qualify as designated offences and the DNA profiles from non-designated offence crime scenes cannot be added to the National DNA Data Bank's Crime Scene Index for comparison with other crime scene profiles or suspect identification by comparison with the Convicted Offender Index.

Four restrictions limit what the National DNA Data Bank can report. First, the Convicted Offender Index profiles cannot be provided by the National DNA Data Bank to police to be used to confirm identity where no other source of DNA for that person can be obtained. Recently, running shoes with human feet in them have been washing ashore along the West Coast, and it is not authorized to put the DNA profiles from these feet in the National DNA Data Bank for possible linkage to other crime scenes, nor can the DNA profile from the Convicted Offender Index be provided even though the police suspect the person may be the same and the victim of murder.

The second restriction is that the National DNA Data Bank is prohibited from informing the police of the identity of a person who is a close match to a Crime Scene Index profile that is being compared to the Convicted Offender Index. Although a match is close and likely a relative of a convicted offender, once it is determined that the convicted offender's profile is not a match to the crime scene profile, nothing further can be reported. The current legislation only permits the National DNA Data Bank to communicate the identity if there is an exact match or the person's DNA profile cannot be excluded as a possible match due to a technical limitation on the completeness of the DNA profile that was obtained from the crime scene; nor can the data bank do any further forensic DNA analysis on possible convicted offenders from existing DNA samples to narrow down the list of offenders who may have relatives who might be the actual perpetrators of the crime under investigation.

Third, the legislation requires a specific request from a Canadian law enforcement agency to the National DNA Data Bank to provide DNA profiles to foreign states to compare them with profiles in their data banks. Prior to any international sharing of DNA information with Canada's National DNA Data Bank, a foreign state must undertake that the DNA information exchanged will be solely used for the investigation or prosecution of a criminal offence.

The G8 countries want a direct electronic system to compare DNA profiles between databases. We would require agreement that matches would only be used for the investigation of criminal offences unless other purposes, such as missing persons or mass disaster identification, are permitted by our legislation. Unless the current legislative requirements are changed, Canadian law enforcement agencies will not be able to benefit from a routine exchange of all unsolved crime scene DNA. Each police agency will need to identify the specific crime scene DNA samples it wants uploaded internationally.

Fourth, with regard to international exchanges of DNA information, the National DNA Data Bank is under the same domestic restrictions as to what it can report concerning matches in the DNA data bank. DNA profiles of convicted offenders who may be internationally linked to sexual predators, organized criminals, or terrorists, or any possible connection to relatives of those suspects, could not be reported.

I would be pleased to respond to any questions you may have.

Corporal Jennifer Derksen, Policy Analyst, Operational Policy & Compliance, Community, Contract and Aboriginal Policing Services, Royal Canadian Mounted Police: Thank you for the opportunity to speak to you today on behalf of the officers out on the front lines of policing.

I will start with my background so you can see where I have come from in operational policing.

I have completed 18 years of service with the RCMP. I am originally from Belleville, Ontario, and I joined in 1991. After graduating from Depot Division in Regina, Saskatchewan, I was posted to Nanaimo, British Columbia. I worked there for nine years in both general duties and major crime.

In 2000, I was successful in attaining a position on the Musical Ride, where I was proud to represent Canada across the country and throughout the United States. After my tour with the ride was complete in 2004, I was transferred to Innisfail, Alberta, where again I did general duties. In 2006, I was transferred to the RCMP Training Academy as a facilitator. From there I was promoted to my current position in Operational Policy and Compliance in the Community, Contract and Aboriginal Policing Services branch in June of 2008.

Given my extensive experience in operational policing, I have firsthand knowledge of the powerful crime-solving tool that DNA provides and would like to share a brief example of one such incident where DNA was instrumental in solving a serious crime.

In 1994, I investigated a sexual assault that occurred in the early morning hours, when a young woman was walking back to town from a rural area. She was dragged down into a ditch and was violently sexually assaulted. Using a sexual-assault kit, I obtained DNA samples and forwarded them to the lab; however, the suspect was unknown. The Violent Crime Linkage Analysis System, ViCLAS, a database compiled from descriptions of all violent crime investigated in the country, identified a suspect in similar violent sexual assaults that had been occurring in the Lower Mainland of British Columbia. We located the suspect and obtained cast-off DNA, which was forwarded to the lab for analysis. The suspect's DNA matched the samples I had seized from the victim. A DNA warrant was acquired and the suspect was arrested, removing a dangerous offender from the street. Just as important, the victim was able to gain some closure.

From the front-line perspective, I can see how expanding the use of DNA technology could increase our effectiveness in solving crime, contributing directly to public safety.

The ability to obtain and process DNA at the time of arrest, as is the case in other progressive countries, such as the U.K. and U.S., may also expedite the process of exonerating innocent parties. It may also contribute to the prevention of wrongful convictions, such as that of David Milgaard. Conversely, dangerous offenders could be removed from the street before they have the opportunity to re-offend and re-victimize.

Under current legislation, we are required to take two sets of fingerprints; one for charging purposes under the Identification of Criminals Act and again if a DNA order or authorization is given. If DNA was taken upon arrest, we would only fingerprint once to satisfy both the DNA and Identification of Criminals Act, saving valuable time and resources.

The current system only allows the collection of DNA for the Convicted Offender Index after a suspect is convicted by an order or authorization, which leaves much room for error and omission. For example, we, as police officers, may neglect to have the Crown remind the court of the duty to issue the order. Also, there is the fact that all orders and authorizations for secondary offences are at the judge's discretion, meaning no order may be issued at all.

Changing the system to parallel the Identification of Criminals Act would also reduce many steps. Currently, if an order is issued, police are required to check the convicted offender's data on the police computer to determine if a sample has already been entered on the system. If the offender's data is already in the database, we are still required to complete another form and obtain another set of fingerprints.

The order demands that, if they are released, the convicted offender must report to a local detachment to allow the taking of their DNA. Offenders may not abide by the order to provide a sample, knowing that their DNA could be linked to other crime scenes once entered into the Convicted Offender Index and run against the Crime Scene Index. If they do not comply, investigators have to go back to the courts to request an arrest warrant, requiring valuable police and court time, money and resources, only to have to locate the offender and finally obtain a sample.

Often, a time limit is connected to the order, which police may not be able to meet making the order null and void. Again, officers are required to go back to the court to reapply for another order.

Another aspect that would assist front-line officers is a change to the wording of the DNA order or authorization. Currently, when a DNA sample is rejected by the lab, another order must be requested, again wasting valuable law enforcement and court time. Wording the order similar to that of the demand made to an impaired driver — for example, as many samples as are necessary to obtain a suitable sample — would simplify the process.

Last, the current legislation does not permit uploading volunteer and victim samples, including DNA from unidentified human remains, to compare against the Convicted Offender Index. Kinship analysis could also determine whether a suspect is a close relative of someone in the Convicted Offender Index and assist in identifying missing persons. The system is currently capable of all of these aspects and would provide very useful tools for solving crime.

DNA at time of arrest, along with fingerprinting, would allow the full investigative potential of DNA analysis to be utilized. Police could obtain any and all leads that DNA may provide them up front in order to focus their investigation early on.

Again, thank you for the opportunity to present this view from the front-line officers in the field.

The Chair: Thank you very much. Welcome back, Mr. Fourney.

Ronald M. Fourney, Director, National Services and Research, Royal Canadian Mounted Police: Thank you. I am happy to be back after such a short night, I guess.

The National DNA Data Bank is a program that falls within the scope of the National Services and Research Directorate of the RCMP's Forensic Science and Identification Services. It is my pleasure to have been asked to come before your committee and talk about the success of our National DNA Data Bank.

The National DNA Data Bank has some very dedicated and enthusiastic professionals who make this program work. Beyond the laboratory group here in Ottawa, the data bank itself and the administration of the act represent a true partnership across Canada, with the provincial laboratories in Ontario and Quebec and the RCMP laboratory sites contributing the DNA information that is entered into our Crime Scene Index.

We are pleased to learn that the Senate committee will be visiting the National DNA Data Bank. It will give you an opportunity to experience the operations in person and potentially address further questions of interest.

The National DNA Data Bank consists of two indices, as you already heard: The Convicted Offender Index, COI, containing the DNA profiles developed from biological samples collected from convicted offenders and analyzed by the National DNA Data Bank; and the Crime Scene Index, CSI, containing biological samples collected at the crime scene by the police and analyzed in forensic laboratories across Canada. Matches between these two indices link crimes where there are no suspects, help to identify suspects, eliminate suspects where there is no match, and determine if there is a serial offender.

Now well into our ninth year of operations, we have more than 157,691 DNA profiles in the COI and more than 47,845 DNA profiles in the CSI. One direct measure of the data bank's success is the more than 11,293 investigations assisted by hits to the COI. This included more than 723 murder investigations and 1,513 sexual assault investigations. In addition, forensic hits in the CSI have linked crime scenes together and assisted investigators in more than 1,769 cases.

The work of the National DNA Data Bank extends well beyond our borders. The international sharing of DNA information from the National DNA Data Bank is managed through an international agreement with Interpol, approved by the Government of Canada and is subject to an agreement which limits its use to the investigation and prosecution of a criminal offence. To date, as a result of this agreement, the National DNA Data Bank provided assistance in three investigations at the international level.

The full proclamation of Bill C-18 and Bill C-13 in January 2008 had a dramatic impact on the National DNA Data Bank, with an increase in the number of convicted offender collection kits received from 18,467 in the 2007 calendar year to 32,326 in the 2008 calendar year. This represents a 75 per cent increase.

The automated technology and the process employed by the data bank have been envied by many forensic laboratories in the world. The effectiveness and the efficiency of the automated protocols utilized by the National DNA Data Bank's highly experienced and qualified personnel are demonstrated by the fact that there is no delay in processing samples for entry into the National DNA Data Bank.

In many ways, our protocols are unique in the ability they give us to track each sample, while at the same time ensuring the complete privacy and security of all samples and data. It gives me great pleasure to report that the data bank itself is recognized as a quality system, having passed the highest accreditation standard for a laboratory of its kind.

I hope that my presence here before the committee will help you and that I can answer any question that you may have. Thank you.

The Chair: Thank you all very much. Goodness knows there is room for thought here, and for questions.

Senator Baker: Before I get to my main question — and, of course, you can comment on this if you wish — I listened carefully to the words of both persons who are employed directly by the RCMP, and you do have some complaints here. Your warrants are only effective during a certain time period, as Corporal Derksen mentioned, and as Mr. Bird mentioned, you have to report back to the court.

All search warrants, under section 487 of the Criminal Code, are confined to certain days and certain hours within that day. If you seize anything by search warrant, you must report back to the court. A report is always given back to the court. I would interpret your words to mean that there should be an exception for warrants issued under DNA authorization. That would seem rather strange because this comes under the general warrant provisions under section 487 in the Criminal Code, and it would look very unusual if you had only one section pertaining to DNA warrants that would be different from any other warrant, even a warrant that involves communications, or a controlled drugs and substances warrant under section 11 of the Controlled Drugs and Substances Act. The fact that you are encumbered by having to report back to the court and being restricted to time limits is certainly not conducive only to the DNA, but rather it is of a general nature applying to all search warrants. That is a rebuttal to what you have just said.

My main question involves a radical change that was made to the Criminal Code provisions of this act. You will recall that when we did this act, I mentioned the example of having a primary designated offence of assault with a weapon. If I threw a pencil at the chair, I could be charged with assault with a weapon. If she threw a pencil at me, it would perhaps be described as keeping me in order.

Along came the case from Nova Scotia, the famous Nova Scotia from which much of our case law is determined before the Supreme Court of Canada. I do not know why. In this case, a young man of 13 years of age was charged with assault with a weapon, a pencil, when he had a slight altercation with his mother at 7:20 in the morning. He was charged. He had no prior criminal record. The trial judge was faced with a decision. We had passed the law that this is a primary designated offence and, therefore, his DNA must follow as a primary designated offence. The trial judge said, "No, I do not believe this is right.'' The Crown appealed. The Court of Appeal said, "Yes, it is right. This is a primary designated offence.'' However, the condition was in there that it had to be grossly disproportionate to the consequences, and the Supreme Court of Canada, in 2005, ruled that this was a minor under the Youth Criminal Justice Act, and the Young Offenders Act and the spirit of that act said that this person should not have their DNA taken.

Along come changes to this act, which Mr. Yost mentioned, effective in 2008, which create now two primary designated offences, one mandatory. Throwing a pencil is mandatory now. My DNA would have to be taken. I have no prior criminal record nor have I ever been charged with anything. It sounds reasonable, says the chair. My DNA would be taken because this is now a primary designated offence, not under this act as we originally passed it but as changed as of last year. There are two sections to the primary designated offences, A and B, and B has the secondary offences brought up into B to make it primary with only one discretion, being grossly disproportionate to.

Was this in response to the Supreme Court of Canada decisions that have been made that interpreted primary designated offences as not being mandatory, but would be subjected to the Youth Criminal Justice Act and the Young Offenders Act? Would you have any comment on that?

Mr. Yost: First, if I may, it is not a rebuttal. It is a clarification of what Corporal Derksen was getting at. I do not believe there is any problem reporting to the courts with respect to search warrants. We are talking about the fact that for all of these orders given for taking DNA post-conviction, there is a requirement to report to the courts as to whether that has been executed. Therefore, the courts are now receiving a report back that we executed or, because of the provision that allows us not to execute as it was already in CPIC, that we did not do it.

I think all police, and I understand some courts, have questioned what the point of this actually is. When we were trying to get statistics with respect to the use of DNA under the old legislation, we contacted courts and asked if they had these reports, what they did with them.

I do remember distinctly that one court in Ontario reported that they put them in a box; they did not know what to do with them.

Therefore, it seems to be paperwork for no particular purpose. It is still in the legislation, and that would be a procedural issue. Obviously, if the system was changed entirely, either to automatic on conviction or on taking fingerprints, there would be no report to the court because it would not be pursuant to court authorization. I believe that is a clarification with respect to the first point.

With respect to young offenders and, in particular, with respect to the 16 super primaries, if I can call them that, we were well aware of the Supreme Court's decision. I can tell you that there has been no challenge constitutionally that I am aware of on this with respect to adult offenders. Two decisions have taken place, one of which was just last week. I can find it for you; it is back at my office.

Senator Baker: I am aware of it.

Mr. Yost: The other one is in Quebec. I think both judges found it was overridden by the provision in the Youth Criminal Justice Act — that you adopt the Criminal Code, subject to such modifications. In both cases, they found that, given the general provisions of the Youth Criminal Justice Act, it overrode. In both cases, they essentially said that they will apply the secondary designated offence test with respect to the young offenders before them in youth court. Therefore, they will check the seriousness of the offence and previous record, et cetera.

In some cases, they have looked at that and then decided to take the DNA in any event. In another case — I think it was a 15-year-old in a schoolyard who hit a bully in the nose and gave him a bleeding nose — the judge would not put it in.

I do not know whether Ontario or Quebec intend to appeal those decisions.

Senator Baker: The criminal record is only considered under our legislation for secondary offences.

Mr. Yost: That is correct. With respect to an adult offender, a judge saying he or she is looking at those factors would be appealable grounds, I believe. The two youth courts have read in the secondary designated offence test no matter what a young offender is found guilty of — primary or secondary.

Mr. Bird: Madam Chair, if I could follow up on a point that Senator Baker raised, he asked about the timing of orders. A provision under the Criminal Code, in section 487.056, requires DNA data banks to be executed as soon as feasibly possible after the issuance of the order.

Courts have been adding additional conditions to require it to be executed before a certain time. They have also restricted where the police can execute the order, such as not in a courthouse.

The problem then becomes that the police are, when a person is in custody, chasing the person through the correction service. If they do not get to them in time, the order cannot be validly executed. That is a timing problem that the police face.

Senator Baker: They can go back and get another order.

Mr. Bird: They can have it reissued, but it is a problem. It is a timing problem, and issues arise over when the police actually do it and how it is carried out.

The Chair: What is the reasoning behind it not being carried out within a courthouse?

Mr. Bird: They do not believe the courthouse should be used for this purpose. As we are hearing here, the judges have, for a number of reasons, imposed conditions and exercise their discretion about whether to issue an order, regardless of what the legislation says. They are issuing orders for non-designated offences that do not exist. They believe this should be in the data bank, and they are making an order and making law.

They are saying that they will not to issue an order for a certain offence because although it is a mandatory offence, they will not exercise that authority, which they are using in some young offenders and some adult cases. These issues are not being done.

There is a great problem in ordering the judges to do something. They are difficult to herd in following the law as it is defined. Senator Baker raised an example about certain judges in the youth courts, but it is happening in the adult courts as well, where they are deviating from the law.

Mr. Yost: At the risk of beating this one to death, Madam Chair, I know the Sûreté du Québec was concerned that orders were being issued that a person present himself or herself within a three-month period to a detachment of the Sûreté du Québec; so, in theory, a person could show up at any time at any detachment and no one would be there ready to take them, et cetera.

This is not a problem in very large centres. They know they will be issuing DNA orders every day in Toronto, for example, so they have police on hand. They have a room that the person is sent to for the DNA sample to be taken before they can leave. It is more a problem in smaller centres.

Senator Milne: Just to follow this up a little bit further, you are saying that judges in some cases are not issuing these orders when they should be, according to the law. In other cases, they are issuing orders when they should not be, according to the law; and in most cases, they are saying that the DNA can be taken, but that it must be done somewhere other than in the courthouse. Is that true?

Mr. Yost: Those all are actually true. We had a much larger problem with the non-designated offences before Bill C- 13 and Bill C-18 because there are so many more designated offences now. It used to be that criminal harassment and uttering threats were the two big ones. They are now covered by the legislation.

Nevertheless, one of the problems is that for what we call the generic secondaries — convicted for an offence for which one can be sentenced up to five years under the Criminal Code or the Controlled Drugs and Substances Act — you must proceed by indictment, and orders are being issued despite the fact that they proceeded summarily. Sometimes the National DNA Data Bank will receive an order that does not indicate how they proceeded despite the fact that we tried to give them every little form. They then have to check back to get confirmation that they, in fact, proceeded by indictment. If they proceeded summarily, the data bank will not do it.

That is the main problem with respect to generic secondaries. We still have a problem with primary designated offences, where there appears to be either no discretion or extremely limited discretion, where we are not receiving the orders.

The Department of Justice did research under the old system. The percentage of orders made for primaries had been increasing. It was pushing 75 per cent by the last year of the study. Nevertheless, that means in 25 per cent of cases of primaries, no order was being made.

It is a little early to be sure what the effect has been of the amendments, of which the most important one was to allow 90 days for the matter to be brought before the court. We do know that various courts have established rules, so we know they are using it. However, when we receive an order, we have no way of knowing whether or not it was done on a subsequent hearing.

We also, of course, have not been able to replicate the research that was done under the old system to find out what percentage we are getting now for primaries.

Mr. Bird: I would like to follow up on Senator Milne's comment about the issue of conditions being attached, particularly where the order may be taken out. In a very a small number of cases courts can and have imposed conditions on the samples, such as not to be taken in the courthouse, when they have to be taken before and what kind of samples can be taken. For instance, they have said that blood is not to be taken or that they should just take hair and buccal swabs.

We have to deal with the problem of ensuring that the police comply with the necessary order in time and ensure those are validly executed.

Senator Milne: Mr. Bird, many of the problems you were outlining, particularly the first one, seem to be concerning procedures, maybe with the regulations or maybe with the way the police or the courts operate and really not within the legislation itself. Therefore, perhaps you could give us a list of specific problems that you see with the legislation and point out aspects that are causing problems. It is legislation that we have to deal with, not all the rest from there on out.

The Chair: We can make recommendations, but our first task is to look at the act. Could you point us to specific clauses that, in your view, merit attention, shall we say?

Mr. Yost: When we did Bill C-18, which was after Bill C-13 and Bill C-72 that died when the election was called, we had the opportunity then to have a roundtable of people who were directly involved. We identified a number of other problems with the legislation.

We can provide you with a list from our perspective. However, it is not quite the same as having a full day's meeting, where we go through the problems and hear directly from the people in the courts, the people in the correctional system and the police on the front lines about what areas of the legislation as it exists are giving them trouble. We will try to contact people and do our best. However, I am a policy guy; I am not there on the front lines to identify all the problems they are having on the grounds.

Senator Milne: Some is better than none.

The Chair: Exactly. We are not asking you to catalogue the universe for us, but give us what you can.

Senator Milne: When we were looking at Bill C-18, the committee noticed that the legislation would allow the Attorney General to make application without notice to the affected individual in order to correct a clerical error in the DNA order. Has there been a provision drafted so that the affected individual or his or her counsel can receive prior notice to make them aware of what is coming up and that the order has been modified?

Mr. Yost: No. That might be an issue we would address if it was a specific problem depending on what is being done with the legislation. However, the view is, I must say, in light of the Rodgers decision and ex parte for a person who was convicted even prior to the legislation coming into force, we do not see, at least in the Department of Justice, that a minor procedural thing such as correcting a clerical error should have the full notice.

Clearly, if you are trying to get an order in the 90-day window, you better give notice to the person who just walked out of the court so that he or she can make a case. However, if a judge has already made the order after hearing the evidence and slip up occurred somewhere, we do not see that this requires notice to the person. That person knows he or she has to give DNA and is probably wondering when they will show up.

Senator Joyal: It is not exactly the same. In listening to the answer you gave to Senator Milne, it seems to me there is a total difference between an ex parte request to get a decision from the court to order a DNA sample to be taken and an ex parte request to a court to correct a clerical error.

To correct a clerical error, you do not have to feel the threat that the person will not be there to give the samples. It is merely an administrative thing. To me, it is important to maintain the principle that, when there is a hearing, both parties are called upon. The person who does not have any objection might not go but, if a person has an objection, he can state the objections. I do not think it is at all on the same level.

Mr. Yost: I will take a shot at that again. I will make these numbers up. If you have something that said "pursuant to section 453 of the Criminal Code,'' which is not a section that deals with an offence, rather it is a procedural section, and it was supposed to be section 435, which is a designated offence, then the person was there and convicted under section 435. Someone made the mistake drawing up the order. That is a clerical error.

To give someone notice and set an entire hearing to fix that, in our view — and subject to direction obviously from yourselves and the other committee in the other house who is looking at it — is still that this is minor and should not involve that much time, effort, et cetera, and a full hearing.

Mr. Bird: I believe this would be the same rule applied to any judicial order; namely, if there is a clerical error, the inherent authority of the court to correct an order is there. The Interpretation Act, particularly if it is a federal order required under the Criminal Code, would provide the authority and the power to make such a change because all that is happening here is issuing what the judge had intended.

If the clerical error is done by the clerk in issuing it, and the numbers are transposed, it can be corrected and no injustice is done. It is effectively carrying out what the judge and court ordered and what the person understood to be the correct order so that the police actually have it. It is that type of case we are talking about as opposed to one where there is some change in the nature of the order intended.

That is why we are saying that this should not be a major issue with respect to DNA or any other kind of order issued by a court.

Senator Joyal: We can have a discussion on this, but I do not want to intervene on Senator Milne's time.

Senator Wallace: I was interested in Dr. Fourney's discussion around the international sharing of DNA information. As he pointed out, it is subject to international agreements, and this sharing is used in parts of investigations in other states.

I was a little surprised to hear you say that our data bank has provided assistance in three investigations at the international level. I would have thought that it would be more than that. However, it makes me wonder how often, if at all, the data bank in Canada has relied upon information provided to us by foreign states in investigations. Is that a common occurrence?

Mr. Fourney: What I meant by that was that we have had three hits in actually identifying someone that led to an arrest, et cetera. Two investigations involved primarily the U.S., and the third one involved Mexico and the U.S.

To clarify, we have received over 463 requests for assistance and sent out 94 of our own. Remember, the information that we can send out is very specific — it is crime scene information. We do not send out convicted offenders' profiles. It is specifically what is left at a crime scene with respect to the DNA profile information. The nature of the information that we are looking for is highly restricted.

In terms of how it was drafted and the conditions applied, I am very fortunate that my colleague David Bird was directly involved with the crafting of our international agreements. To date, we have had three hits. My apologies if I misled the committee.

Senator Wallace: Mr. Bird, in cases where information obtained in a foreign state is presented as evidence in court in Canada, do we need to do additional testing of material through our data bank? Are we able to rely upon the result of labs in foreign states and introduce those results as evidence before Canadian courts? At the root of my question is a question that I asked Mr. Fourney yesterday. It is a matter of the consistency of Canadian standards in respect of technology and procedure versus those of a foreign country. Is there a consistency in the standards? Would that work be recognized in Canada or is it a necessary to do additional testing of the same material here?

Mr. Bird: With the existing DNA exchange of information agreements internationally, we exchange investigative leads. We send out only unidentified crime scene profiles for the purpose of seeking identification through a link to an international crime scene or convicted offender index in another country. Once a link is found, we proceed with other means to obtain the necessary evidence to proceed with the case in Canada. Those agreements might be a mutual legal assistance treaty, MLAT. We might have to go to court to ask for a warrant to obtain foreign samples to be enforced in another country and a letter interlocutory to bring the foreign experts here to provide expert witness evidence in a Canadian court. Essentially, it would be no different than obtaining evidence with respect to something that happened in a foreign jurisdiction to be used in a criminal prosecution in Canada. The same rules would apply whether the evidence is DNA or any other type of evidence.

Senator Wallace: We are here to study the DNA Identification Act and any improvements or changes that should be made. If you have any information relevant to the international sharing of DNA data that we should think about in this regard, we would appreciate you providing it to the committee.

Mr. Bird: Yes, sir.

Senator Milne: My question follows the same line of questioning on the exchange of DNA information with foreign jurisdictions. When this committee went through this exercise in early 2007, we were concerned about sharing DNA with foreign jurisdictions where crimes might be classified differently than here in Canada. We were quite concerned about deemed offences in one country not being deemed offences under Canadian law.

Have there been any occurrences of this happening in the two years since Bill C-18 came into effect?

Mr. Bird: Unfortunately, I cannot give you details on the type of foreign exchanges, although the National DNA Data Bank can talk about the nature of the request. It is my understanding that, given the signed agreements in place with foreign countries, they can send us DNA profiles that they would have an interest in, and we do not necessarily vet those, although we could do so. It is more important that any information we send back would be subject to the question of what it is to be used for and be restricted to the prosecution in the investigation of a criminal offence because that is the related information. We receive material, send material back and ask questions about the nature of the use of that information.

Senator Milne: Do you do that?

Mr. Bird: We can do that, and I believe we do that.

Senator Milne: This takes us back to human rights, the right to privacy of individuals and the use in foreign jurisdictions of kinship relationships and familial relationships that Mr. Fourney spoke to yesterday. I have grave concerns about the rights of the individual being transgressed in such matters if this material may be used in investigations in another country.

Mr. Bird: Currently, no material from the National DNA Data Bank is ever sent abroad for further analysis. Only unidentified crime scene profiles can be sent from the National DNA Data Bank. The DNA material from the crime scene is kept in the labs, and the DNA data bank does not have that information. It has only the samples from the convicted offenders subject to the order. The data bank retains those but never sends them abroad for further analysis.

Senator Milne: I am not talking about sending the samples abroad. Rather, I am talking about sending the information abroad.

Mr. Bird: The DNA profile can only be sent abroad to determine if there is an exact match. If it cannot be excluded, it is called a moderate match such that there is similarity, but it cannot be excluded. Perhaps their crime scene is degraded, as was referred to last night, and that degraded profile might lead to potential matches in our data bank. In that case, further analysis is required to confirm whether the profiles are an exact match. In Canada, we might match several profiles. However, until we are satisfied by exchange of information between experts that those must be excluded because further analysis of their crime scene reduces the likelihood that any of those are a match, no further information is provided; and that is the case once it is positively excluded. If we reach the point where there are several matches in common with their crime scene, then we can talk to them about further information that we would provide. However, that would be personal information about the offenders not further DNA information.

Senator Milne: You have only the profile to begin with, so you cannot share anything more than that. They might be using kinship or familial relationships and thinking that the information has narrowed it to a particular family, who might be innocent except for one individual.

Mr. Bird: We do not control what foreign agencies or law enforcement agencies do. We can only restrict them to using it for the prosecution and investigation of criminal offences.

Senator Milne: I will subside on this issue, but I am not content with the answer.

Senator Joyal: Mr. Yost, you were present in the committee room last night when Mr. Fourney testified, but I do not know if you were here when we concluded our meeting. I expressed a concern that in the new expansion of the DNA test, those new developments might have an impact on the protection of the privacy rights and individual rights under section 8 of the Charter. Are you conducting studies at the Department of Justice on this point whereby you evaluate those new developments in technology that Mr. Fourney described yesterday within the context of the principles of our system of justice with respect to the Charter and common-law protection?

Mr. Yost: I am quite sure that criminal law policy is not involved in assessing the privacy impact of those technologies. We are well aware of the endorsement by the Supreme Court of the protections that are already there. We are certainly not contemplating cutting those protections down.

Other sections in our department, such as the privacy and human rights sections, et cetera, may be involved in providing advice with respect to evolving technologies and biological issues that are happening, but in criminal law policy we are not involved in examining the privacy issue.

Clearly, if there were to be any change in the procedures, I would advise that we should move from procedures to sections of the DNA Identification Act that actually put these into law so that they could not, at least theoretically, be changed by RCMP procedures. If there were any intention to touch those, we would certainly obtain a complete privacy and human rights analysis before we moved forward. My paper does not address privacy issues because what we have right now is robust and endorsed by the Supreme Court.

Senator Joyal: If I understand you well, you are not in a position to answer that question, but some other section of the Department of Justice might provide the answer.

Mr. Yost: I can certainly check with our privacy group and ask if they are involved in this. I am not aware, though, myself.

Senator Joyal: Madam Chair, when we receive the information Mr. Yost thinks he can provide us, we will certainly be interested to know if there are other experts or other responsible persons within the Department of Justice who could be helpful to us in that context.

The Chair: Indeed. It is clear to us that this study is of a complexity that is unlikely to be satisfied by hearing from just three or four people, so assistance in finding further witnesses is gratefully received.

Mr. Bird: It might be helpful to the committee to point out that no technological changes in the way forensic DNA analysis is done would require that the bodily samples stored by the DNA data bank be re-analyzed.

Subsection 10(2) of the DNA Identification Act states the following:

Forensic DNA analysis of stored bodily substances may be performed if the Commissioner is of the opinion that the analysis is justified because significant technological advances have been made since the time when a DNA profile of the person who provided the bodily substance, or from whom they were taken, was last derived.

Last night, Mr. Fourney raised the question of when the commissioner will have that opinion, what it will be based on. Currently, the commissioner has been asking the DNA Data Bank Advisory Committee for advice on this matter. You can take it that no unilateral changes will be made by the commissioner of the RCMP about the type of technology being used to sample and change the analysis of stored bodily substances. Changes would only be made after a full debate on the issue.

I leave you with that. The legislation provides a safeguard that would force a commissioner to have direct evidence that some sort of change is necessary to re-analyze the existing bodily substances.

Senator Joyal: I will return to the issue of ex parte applications on two grounds. The first concern, which was raised by Senator Milne, is about the application to correct a clerical error. I do not see why disclosure of the application could not be made to the affected party. It does not seem to me that it is endangering the procedure or the end result of the procedure, which is to get the sample.

It seems to me that we should follow, as far as possible, the normal common-law procedures in terms of criminal justice. Unless there is a circumstance that is vastly contrary to the legitimate objective that is pursued by the procedure, we should in all instances abide by the common-law principles.

In my opinion, the recommendation that this committee made last year, following Bill C-18, is still valid. This was one of three recommendations that we made. I have not seen anything in your proposal that leads me to believe that our recommendation is ill-advised or, to put it in simpler terms, that it would endanger the system. Our recommendation reflects sound practice and respects the rights of the accused — or the person who is under arrest or the person who is sought after — to be informed.

It is within sound principles of criminal law to, as far as possible, follow the normal common-law procedures, unless, as I say, there are exceptional circumstances. The criminal court recognized those exceptional circumstances, the reality. Should we not take the initiative to reflect that in the act?

Mr. Yost: Since the passage of Bill C-18, it has been made abundantly clear that everything is waiting for the results of these reviews, by the other house and by the Senate. If major changes are to be made to the system, then we will have to design the legislation and the amendments, and in so doing, we will take into account your recommendations, the recommendations that were made at Bill C-18, and we will look into them.

I am not aware — and it has not been brought to my attention by any of the provinces with which we have an exchange of information — that this provision has been used very often. As I say, we are having fewer difficulties than we used to have with the number of orders that were a problem because of the expansion of the legislation, et cetera. However, we are waiting to know whether we are tweaking the existing system or whether you are thinking of more major changes, which might make this issue relatively minor in the scheme of things, something we would have to think about in terms of the procedures we would be developing at that time.

I would not want you to have the impression that the Department of Justice is unaware of the recommendations you made. We will certainly take them into account in the development of whatever amendments may flow from this process.

Senator Joyal: Thank you for your answer.

My second concern is in relation to the ex parte request for the order to be granted so that the person provides the DNA samples.

I have read the Rodgers decision, and I want to point out for the benefit of my colleagues that the decision was 4 to 3. The decision is not as clear as one would want it to be, especially the motives that Justice Fish outlined, writing for the three dissenting judges. The dissenters were Fish, Binnie and Deschamps.

In the decision, Justice Fish explained why he thinks the ex parte procedure violates section 8 of the Charter. He argues that an ex parte procedure does exist within the code but that it exists under specific exceptional circumstances.

He states that those three exceptional circumstances have been well identified by the Supreme Court in two former decisions, one being the Ruby decision of 2002, as you may certainly know. It is a recent decision whereby an ex parte hearing can be granted when the delay that would be incurred by serving the notice would be prejudicial.

The second circumstance is when one fears that the other party will act in an irregular or irrevocable way when the notice is served. The third circumstance he identified was in a Supreme Court of Canada case in 2003, where the risk that the suspect would act in a way that might compromise the good execution of the order should be considered. In other words, the Supreme Court has already recognized the circumstances in which an ex parte hearing should be granted.

In the Criminal Code, the ex parte hearing is made the norm, and we say, as the court has said, that if the person that is the object of an order is not happy, that person can go through a certiorari procedure. In other words, we have turned the system upside down. That is why Justice Fish concluded that the ex parte system is in fact contrary to section 8 of the Charter.

As I said, reading his motives, the majority decision and the fact that it was such a split decision, it puzzles me, even though the Supreme Court decision was 4 to 3 that this is legal, that it is sound practice in relation to our criminal procedure and the principles that are entrenched in it, the fact that when someone is the object of an intrusion against his privacy, against section 8 — and the majority of courts have concluded that it is an intrusion against section 8 of the Charter — then of course protection is afforded.

The paramount interest of justice must be served, and we all agree with that. That is why the Supreme Court has decided in past jurisprudence as to what context ex parte hearings can be granted.

However, in my opinion, to change the system, one would have to have paramount arguments leading to the conclusion that we should do it that way. It is helpful to have this decision and that it is split because both sides are well argued, and one can reassess the system.

How would you react if we followed Justice Fish's conclusions that it would be a normal hearing except under certain circumstances so that the judge can still go forward on an ex parte basis?

Mr. Yost: I may sound a bit like a broken record. I believe by the time we get around to doing amendments, all of these retroactive orders will have been the subject of applications, and they will have been processed. The last I heard, we were well past 50 per cent of the ones that had been identified in Bill C-13, the one murder and the one sexual offence.

While your opinion and that of the three justices is extremely helpful — I was not involved in designing this legislation, and it was one of our tighter wins at 4-3 at the Supreme Court — there may in fact be, unless there is an expansion of the retroactive category or perhaps the international offenders serving their sentences in Canada are to be brought into the system, then we would have to consider how you would bring them into the system. Would they receive notice, or would we go ex parte? It will depend on, perhaps, whether this is a live question and whether there are any such amendments.

I certainly know that the provinces breathed an enormous sigh of relief when the Supreme Court held up the decision because we were concerned that there would be 2,000 orders that would have to be relitigated, et cetera. How I would react is probably irrelevant. How the other parts of the Department of Justice might react would be perhaps more relevant.

Senator Joyal: I think the principle is very important. They are fundamental principles of the system, as you know. If we were to review the act and its usefulness, it is a very normal approach for us to question ourselves on how we can achieve the objective of the act and the purpose of DNA sampling in order to help the police forces prevent crimes and find the guilty people.

However, we are here as a group of average Canadians who want to understand how much we maintain the principles of the Charter and common law, and the legitimate objective that we want to achieve through DNA. That is essentially why we want to do that exercise, and we seek your help and guidance towards achieving that kind of reflection.

Mr. Bird: Senator Joyal, if I could add something to the discussion, my understanding is that in other jurisdictions, such as in the U.S., they have not followed the same route as Canada but, in fact, have passed legislation that requires people who are serving a sentence, if they have not contributed their DNA to the state or national data bank, that they are required before the expiration of their sentence to do so. There are other models that deal with the same issue of which retroactive offenders are covered, which could also be considered. This would avoid the hearing and this question as well.

If various models are being looked at for improvement to the legislation, then that is a possible consideration that may be on the table if someone puts it there.

Senator Joyal: Thank you very much.

Senator Dickson: I would like to place on the record that I support Senator Joyal 100 per cent. I really believe that you have to give credit to the Charter and take into consideration section 8 thereof. With respect to the rules of natural justice, we are operating under a Canadian system. When I heard Mr. Bird speak about the U.S., it made me shiver a bit that we are going in that direction. I hope we are not even thinking about going in that direction.

Coming to my question, I want to reference something that Mr. Yost said earlier. Do I understand that existing discussions are occuring before a committee in the House of Commons at this present time in relation to this legislation?

Mr. Yost: Yes, that is correct. We appeared in front of them on February 24 or February 26, in that range. They had two days of hearings. They heard from the advisory committee on the same panel that we appeared, and then they had some other hearings, including the Privacy Commissioner.

They will meet again on April 28 because that was the first time they could arrange hearing from the forensic laboratories of Quebec and Ontario. I do not know whether they intend to have any hearings beyond that. Yes, simultaneous reviews of this legislation are underway right now.

Senator Dickson: As a follow-up question, I think you made reference to a new system versus the existing system. What is the theme coming out of those discussions in the other house? Is it a new system? How do you feel about it? I am asking that question to any one of the four witnesses before us. Will it be a new system or will there be amendments to this system?

Mr. Yost: I would not want to guess. No, I will guess. You may get the same impression as me after you have heard from the advisory committee, at least from the chair, Richard Bergman, and the Honourable Peter Cory.

The Honourable Peter Cory was asked what he would recommend, and he made two recommendations. The first was to get this out of the courts. He said that since he is an ex-judge, he could say that judges are seemingly not exercising the discretion properly. He said that if you have committed these kinds of crimes, you go into the data bank.

His second recommendation was that the restrictions on what the DNA data bank could communicate, particularly in circumstances where it is a near certainty that it is a relative, frustrates the law enforcement purposes. You can find the quotes in the transcripts, but that is the thrust of what he said. I think that was well received in the other hearings.

The first recommendation would be a huge change in the system. We would no longer have judges' authorizations, et cetera. If you are convicted of a certain offence, you go into the DNA data bank.

The Chair: Mr. Cory will be appearing before us next week, Senator Dickson, unless he has changed his mind. I assume that he will be elaborating on comparable themes with us.

Senator Dickson: Thank you.

Senator Bryden: It is not surprising that the other place would be in favour of Mr. Justice Cory's position that, if you have done the crime, you do the time with the DNA data bank. That is right in line with minimum sentencing where the courts have the right to determine sentences.

For many crimes, as you know, until recently, mandatory minimum sentences were in place. That is a new trend. Whether it is effective in helping to reduce crime is another issue.

I have a question for Corporal Derksen. I was interested in what you said. You stated clearly that in your experience DNA is a wonderful tool for the investigation of criminal activity.

Cpl. Derksen: Yes.

Senator Bryden: You spoke of all the work that needs to be done and said that you could be much more efficient if there were not all these papers to fill out, and so on. You referred to more progressive nations in relation to DNA and cited the U.S. and Britain.

In what way are the U.S. and Britain more progressive than Canada in their treatment of DNA for the control of crime?

Cpl. Derksen: They are democratic countries, of course, with independent judiciaries. They utilize DNA in ways that are very beneficial for law enforcement, not only for expediting the exoneration of innocent people but also for narrowing investigations right from the beginning. The taking of DNA at the time of arrest is a big leap, and it would be a huge tool for law enforcement.

Senator Bryden: You said that the ability to obtain and process DNA at the time of arrest, as is the case in other progressive countries such as the U.K. and U.S., may also expedite the process of exonerating innocent parties.

Cpl. Derksen: That is right.

Senator Bryden: However, as you just indicated, its primarily use is to assist the police and other law enforcement personnel in catching the perpetrator and getting convictions.

Cpl. Derksen: I disagree. It is probably close to 50-50. When we investigate a crime, there are often many suspects. When we have a suspect but are not sure what their involvement is in the case, if we have a DNA sample, we can run it and have that information at the beginning. In that way, we can exclude innocent people immediately. If they are not in the Convicted Offender Index and their DNA was not at the crime scene, they can usually be excluded right away. That is not 100 per cent effective, because there are ways of keeping your DNA from a crime scene, but, it is a huge tool for law enforcement.

Senator Bryden: Should we relax the practice of using DNA? As you have indicated, a person's innocence can be proven if the DNA does not match, but are the more progressive nations as good at being fair to the accused?

Cpl. Derksen: I cannot comment on that because I have never been a part of their system. As to relaxing the rules, it is more than relaxing them; it is bringing them in line with the Identification of Criminals Act so that it is the same sort of process. It would be done at the beginning rather than at the end. If the DNA of a person convicted of homicide, for example, is in the Convicted Offender Index, it can be run against the Crime Scene Index. In that way, we are alerted of the offences of which that person has been convicted. This would preclude us having to go back and start from the beginning rather than having it all tidied up at the onset.

Mr. Yost: I reference in the paper the case of Marper v. The United Kingdom, which found the United Kingdom system to be in violation of the European Convention on Human Rights. I will ask you to look at paragraph 47 of the decision.

I have it in front of me, but I do not have copies for everyone.

The Chair: I wonder if you could provide that.

Mr. Yost: I will leave this behind. I can find it on the Internet again. You will find my markings on the paragraph; that is the problem.

As I read that paragraph, almost all the states in the European Union will take DNA upon arrest. It says:

The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings.

Therefore, they already have it before the person has been convicted. The decision continues:

Ten other States apply the same general rule with certain very limited exceptions: Germany, Luxembourg and the Netherlands allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case; Austria permits its retention where there is a risk that the suspect will commit a dangerous offence and Poland does likewise in relation to certain serious crimes; Norway and Spain allow the retention of profiles if the defendant is acquitted for lack of criminal accountability; Finland and Denmark allow retention for 1 and 10 years respectively in the event of an acquittal and Switzerland for 1 year when proceedings have been discontinued. In France DNA profiles can be retained for 25 years after an acquittal or discharge . . . .

With respect to Norway and Spain, I take the "lack of criminal accountability'' to be the same as our provision of not criminally responsible on account of mental disorder.

Therefore, the European Union is, as I understand this, essentially everywhere. Countries take DNA on arrest, and then they have different rules that apply as to how long they keep it if the person is acquitted, found not criminally responsible, et cetera.

You may want to have Superintendent Mike Sekela of the RCMP as one of your witnesses. Perhaps you have heard of Project KARE in Edmonton, where he has been gathering DNA and other identifiers, including tattoos, et cetera, from prostitutes. They have had a series of murders there, and DNA would be the last tool to try to identify them if they disappeared. Superintendent Sekela has been trying for years to get people to have johns give DNA samples, and I will leave this with the committee.

Superintendent Sekela contacted the sheriff of King County in the United States and asked what effect there might have been had that county taken DNA on arrest in the case of the Green River murders. You may have heard of the Green River murders. The person was first arrested on May 4 on a john patrol, be that as it may. Had they taken the DNA at that time, by his fourth murder, they would have had some DNA and would have identified him, and 41 to 43 women would not have been murdered by this person.

When you are thinking of the balance here, there are victims when the DNA is not analyzed as fast as possible. I will leave these two documents with the clerk. They are in English, although I am sure that the European Union must have a French version, but I only have the English version with me.

The Chair: That is probably on the web.

Senator Bryden: Just to be clear, what is Britain's position? Do they take the DNA on arrest?

Mr. Yost: Yes, on arrest.

Senator Bryden: How long do they keep the DNA?

Mr. Yost: The United Kingdom is presumably responding to that decision. They had been taking it for all recordable offences, and I happen to have the original one in front of me, which are convictions for and cautions, reprimands and warnings given in respect of any offence punishable with imprisonment in any offence specified in the schedule to these regulations. Again, I will leave this one behind.

Some of the offences, I have marked a few, are purchasing or hiring a crossbow or part of a crossbow by a person under the age of 17, and the offence of indecent or racialist chanting under the Football (Offences) Act.

Senator Bryden: They take DNA for that?

Mr. Yost: That is one of the criticisms made.

Senator Bryden: Chelsea must have lost.

Mr. Yost: That is one of the criticisms made by the European court, that basically anyone who comes near a police officer has their DNA taken and has no way to get it removed whatsoever except a process where they would apply to the police to ask the police to authorize its removal, not a judicial process.

That is a very broad view.

Senator Bryden: Thank you for that. Years ago I was the Deputy Minister of Justice and Attorney General in the province of New Brunswick, and the police forces or police officers in any instance that I have been involved in think that if it is tougher and if it helps the investigation, it makes his or her job easier, it is better. They are in favour of that.

The sorts of things happening in Britain that you just listed is where I do not want our DNA laws, or any other sorts of laws, to go. It concerns me too think that because some police officer decides that a person is suspicious and might be trouble some day, that he or she gets a record; and the only way to get it back is if the police make that decision.

I do not want to go on with that.

If you were here yesterday, you would have heard me do a little bit of a rant in a different direction. My concern is that the more power you put in the hands of law enforcement people, the more concerned we need to be that our basic structure, our basic value structure, our Constitution and Charter and so on, is adhered to rigorously. Thank God we do have judges who split their opinions from time to time and, in fact, are prepared to deal with issues on the basis of the facts that are presented to them and not on the basis of a Parliament or a dictator who says, "If you do this crime, you automatically spend 10 years; it does not matter what the circumstances are.''

I do not want to go any further with that, but that is the concern, and it is a very significant concern to many people. It is one of the areas that a number of people around this table and certainly I will have a significant concern with in relation to amendments that I will recommend for this study. I will not agree to go down the road that would end up where the British situation has ended up.

Mr. Yost: If I may comment briefly on that. Obviously, a number of filters apply, not the least of which is that the Minister of Justice must certify, before we would ever table legislation, that it is compliant with the Charter of Rights. We are well aware of the criticisms made by the Europeans, and we would certainly, if we were going down that path, have to put in a whole number of safeguards, et cetera, to meet those kinds of objections.

In the end, however, when this comes before the courts, I believe we will be into a section 1 analysis, and that will be the benefits to the protection of Canadians by allowing law enforcement to make the use of DNA that will come out of these reviews, how many lives may be saved, how many people will not be subjected to sexual assault, et cetera, and that is why I pointed out the experience in King County, which is probably the most dramatic of them all.

However, the reality is that if we keep DNA profiles out of the DNA data bank, we will not identify as many potential offenders as we will if we put them in. In Britain, they filed information that clearly was not sufficient for the European Convention on Human Rights on the number of hits they had from people not ultimately convicted. A number of murders were solved because of that.

Similar judgments would have to be made in Canada if we were to decide the benefits of this outweigh the interference with the person's bodily integrity by taking a sample of their blood and putting it in the National DNA Data Bank, with all the protections we have for the person's privacy rights, et cetera.

I started my statement by saying that, compared to the other issues, that one is the most fundamental. If we go to 100,000 submissions from 32,000, we may not triple the number of hits we will get; we may double them, but those are still investigative leads to the police for serious offences.

The Chair: I do not think any of us underestimate the gravity of the issues that we are grappling with here. I ask you to take that on faith.

I am also interested in this matter of retention of profiles. I must say that I find the United Kingdom's system not to be an indication of the way to go. However, with respect to our system in Canada — and I am referring here to your very instructive paper, Mr. Yost — your opinion now is that the DNA data bank must disable all links to a crime offenders' index profile in the case where all the orders that authorized the sample to be taken have been overturned on appeal.

Why would we not simply say that if authorization to take this sample to compile a profile has been ultimately denied, why do we not just kill out the profile? Why do we insist on keeping the information that the courts have ultimately ruled we should not have taken in the first place?

Mr. Yost: The reason we put that in was to deal with a problem that had developed under the legislation prior to its amendment. The problem was that a person may have been convicted, DNA was ordered and put into the National DNA Data Bank, and then the person was subsequently convicted of other offences. A section in the act at that time said that if the prosecutor advises the court that the person is already in the DNA data bank, there is no need to make another authorization. If, subsequent to that, the first one was overturned, then there was no way to go back to the judge and say, "Had you have known it would come out, would you have ordered it to go in for this designated offence?'' The judge was functus. We could not go back to him.

We put in this new process in which the judges are to consider, in every case, whether they would have ordered this person to go in. That is why we have the set of them. I do not think this is a popular process with the police. They have to find the person; they check, and he is in there, and they fill out the forms, take the fingerprints and send them all over the place and ultimately not to get a person into the DNA data bank, but in case this somewhat rare — but it did happen — situation developed. That is why it was done.

It would be simpler if one said that if the person had been convicted of any designated offence and still had DNA on file that we keep it until there are no designated offences. That would be simpler. It was not put forward last time because the basis we have now is that the judge considers the DNA authorizations in every case, including the case of a person who has been subsequently convicted of yet another offence and is already in the data bank. One could question whether that was the most efficient way to proceed.

The Chair: One might, indeed, contemplate a recommendation for a simplified process. Like Senator Bryden, I think Corporal Derksen has been getting off lightly. I would not want you to think that that meant that what you had to say is being taken lightly. Indeed, what you had to say is extremely interesting, but I just want to probe a little bit.

Before I probe, from all of you, it seems clear to me that one of issues that needs to be thought about quite carefully is how to cope with the difficulty of actually making sure that the DNA samples get taken when finally we need them.

However, when I was listening to your testimony, Corporal Derksen, it occurred to me that what you were really saying — and tell me if I am wrong — was that it would be helpful if we could take DNA samples before arrest. Presumably, once you arrest someone, you have already got other indications that that person is guilty of the offence in question. The DNA sample might then be very useful confirmation, but it would not have been determining evidence in making the arrest because you did not have it yet. You seem to be saying that we could be screening out people so as to focus on the real culprit. How would you do that before arrest? That is surely not a road we want to go down in this country.

Cpl. Derksen: Surely not; that is not my intention at all. When we have a suspect, we can do cast-off DNA without arresting someone. We follow a suspect; we get their chewing gum or drink from Burger King. We send that sample to our lab, and it comes back as a hit to the crime scene. We then have some grounds for arrest. At that point, we could get the sample, which could then be compared to the Convicted Offender Index in order to call up any other possible hits.

The Chair: The 41, for example?

Cpl. Derksen: Exactly.

The Chair: That clarifies matters slightly.

I have one further question on the retention of profiles, Mr. Yost. The European Court of Human Rights overthrew the U.K. Can you tell us the result of your reflections on how far you can go under the Canadian Charter in terms of retention of profiles?

Mr. Yost: At the risk of having the human rights law service jump all over me, I would start by saying that the Canadian system, if it was fingerprinting, would only be for indictable offences, so we would get around the vast scope of their recordable offences; it would be for quite serious offences, which is one of the aspects the European court talked about.

I have not given an immense amount of thought to the types of safeguards we would need. I assume we would have to have a judicial process. Perhaps the judge, upon acquittal, could be seized of the issue of whether or not to keep the DNA.

Some jurisdictions, as was mentioned, have different rules depending upon the nature of the offence. Also, as I understand it — and I would love to have some of that legislation in my hands — when they could not prove it beyond a reasonable doubt, or there was still a suspicion, as in the "not-proven'' Scottish verdict, a judge might consider those aspects.

Clearly, if the police have in some way abused the process — the person was picked up without appropriate grounds, et cetera, so that they could prick his finger and get the DNA, fishing for something else — that would be something that we would have to find a way to stop. I am not exactly sure how we would do that.

As we learned with the development of Bill C-3, the amendments in Bill C-13 and even the amendments in Bill C-18, transforming the principles into workable procedures is a very difficult task. It would take a fair amount of work, which, however interested I might be in launching into it, I do not think the other sections of the department and others I would have to deal with are eager to do. If they knew we were actually going down that road, then they would be willing to become part of the group that is developing the new procedures.

Senator Baker: My understanding was that the hit that would be obtained from the DNA bank would then ground the reasonable grounds for a DNA warrant. The hit constitutes the reasonable grounds, but that is what grounds your DNA warrant. I just wanted to clarify that to ensure everyone understood it. You do not go into court with what you have obtained from the DNA bank; you go into court with what you have obtained from a DNA warrant, which is then your blood sample.

Mr. Yost: It is subject only to you going into court to get the DNA warrant.

Senator Baker: Yes, it grounds for your warrant.

Corporal Derksen's plea, as far as her statement is concerned, is interesting, and I understand it totally. Seventy per cent of those people in jail at any given time in Canada have never been convicted of the crime; they are there awaiting trial. It is not the case, as Mr. Yost said a moment ago, that someone's fingerprints are taken only in cases of indictable offences. When Corporal Derksen arrests someone for impaired driving, that is a hybrid offence, but it is considered to be indictable, and then that person has to appear at a certain date, and promises in writing to go in, under the Identification of Criminals Act. A hybrid offence is considered to be indictable for the purposes of the act. I can understand why she would then say that if you take someone's picture or fingerprints, the person is under conviction for a hybrid offence, so why not do it for the DNA sample? That is how I read your submission: Why not add that on?

Is that correct?

Cpl. Derksen: That is a big part of it.

Mr. Yost: With respect to the impaired driving example that you gave, my understanding is that in British Columbia, where they have charge screening, the police do not take the fingerprints until they decide on the charge. If they decide to proceed by summary conviction, fingerprints are not taken. In other jurisdictions where the police make the arrest, if it is indictable, they take the fingerprints. A number of issues arise there for me.

The Supreme Court of Canada, in the quote I referred to in my brief, calls the DNA Identification Act the twenty- first century supplement to the Identification of Criminals Act.

My understanding is the RCMP and other forces are working on some real-time identification services. They can tell you to put your hand down, and they will be able to say whether you are in the DNA system or not, and away you go. That is a fact.

The fact that we do not take the DNA from a person who was convicted summarily reduces enormously the number of people that go into the DNA data bank.

My other file is impaired driving. We have 65,000 convictions for impaired driving every year; my guess is that over 99 per cent of those do not proceed by indictment. They are summary convictions, so we do not get those people into the DNA bank. The judge cannot order them in.

The British experience and other countries' experiences suggest that a small percentage of these people have been involved in other serious crimes, so we do not catch those people that way.

Senator Baker: Mr. Yost, would you verify to the committee that with the most recent change to this act, as incorporated and identified in the Criminal Code as section 487.051(1), which refers to a list of the 16 offences to which you referred earlier, in which it is mandatory that a blood sample be taken for DNA purposes, that that also applies — and throughout your presentation to us you have talked about people who have been convicted of an offence — to people who have been discharged?

In Canada, we have two methods of discharging. One is a conditional discharge; the other is an absolute discharge, where you have no criminal record. However, that section says "or discharged.'' Therefore, the judge says, for example, "You will have no criminal record; you have an absolute discharge. But oh, yes, the law says that we have to take your DNA and submit it into the DNA data bank.''

That, in effect, is the result of new section in the act; is it not?

Mr. Yost: The act from day one had that wording.

Senator Baker: It was not mandatory, though.

Mr. Yost: No, it was definitely not mandatory. However, in the case of a discharge, you could be put in. I suspect that the discharge causes the National DNA Data Bank some difficulties because the person is put in, and 18 months later they have to pull them out, et cetera. I do not know how often those 16 offences come up with a discharge.

Senator Baker: The remark of the chair is one of them.

Mr. Yost: That list of mandatory offences did not appear within the original legislation. It was part of a series of amendments made in committee in the other house to get it through. I find, in sober reflection, perhaps, that the list is not the best list. I am amazed that we do not have terrorism offences and criminal organizations offences as mandatory. They are primary but not mandatory offences.

Causing bodily harm or with a weapon is the one that has led to the interesting decisions in youth courts, where it is these very minor things. That is because the offence covers such a range of activities. If there are to be more mandatory offences, perhaps that list should be reconsidered, and perhaps this committee might want to provide us some of its views on which offences should be included as mandatory, if any. You might be opposed to any mandatory offences and leave the discretion there as it used to be. However, if there are to be mandatory offences, is the list we have the right list?

The Chair: Are there any other offences that you were amazed not to see on the mandatory list?

Senator Baker: Do you mean apart from terrorism?

The Chair: Yes. It is an interesting exclusion.

Mr. Yost: We have "facilitating terrorist activity.'' I believe I mentioned that.

The Chair: I assume any terrorism-related offence would be.

Mr. Yost: "Trafficking in persons'' is not on there; just "hostage-taking.'' I have my doubts that "attack on premises, accommodations or transport of United Nations or associated personnel'' is one that comes up often, but I did mention the criminal organization offences.

Perhaps some in the secondary offences one might think would go up, if one wanted to look at them.

In my view, it would be much simpler if we had generic categories: If it is indictable, and it is more than a 10-year sentence, et cetera; if it is indictable, otherwise, it is a secondary — that kind of thing. We do not have, other than in the generics in the second, any criteria based upon the sentence reflecting Parliament's view of how serious it is, and therefore the consequences that would flow, including a DNA data bank order.

Senator Milne: I will change the subject.

I can see some value in the use of DNA to track down missing persons. You say that it cannot be done under the present law. Should we recommend investigating such a use of DNA under very narrow restrictions?

Why could you not test the DNA of those feet that you found in sneakers in British Columbia along the coast? If you could not test those, then why could we use, according to what Mr. Fourney said last night, mitochondrial DNA, Y-DNA and even SNPs to identify the missing persons in the plane that went down off Peggy's Cove?

Mr. Fourney: First, the technology we used when Swissair 111 went down off Peggy's Cove was primarily the short tandem repeats, STRs. We did not use any other DNA technology. The technologies that we currently use today are the same we used back then. We did not have access to the newer technologies we discussed in the science lesson last night, and we did not use them.

Senator Milne: They did use them in the testing from 9/11. I would assume they identified some Canadian bodies from that.

Mr. Fourney: I believe so. With Swissair 111, we were able to obtain reference samples from biological relatives. In that instance, we had consent from the relatives crafted specifically for that investigation to compare the samples to remains found at the site.

Senator Milne: Have all those DNA samples and records now been destroyed?

Mr. Fourney: I presume so. When the case was closed, my files were sealed essentially. We do not have permission to use those samples for any other purpose.

Mr. Bird: The relatives signed the consent forms that said that the samples would only be used for identification in that investigation of Swissair 111. It could not be used for any other purposes.

Senator Milne: Is that how you could narrow down the use of DNA samples to find missing persons?

Mr. Fourney: Since I have been on the DNA file, the suggestion of the creation of a missing person index has come up on numerous occasions. At least two private members bills have come before Parliament. Each time, questions are asked about how to create such a missing person index. Deliberations on how to do it are still ongoing.

Where we have reviewed the U.S. and other jurisdictions that have missing persons programs, they have been extremely useful in identifying human remains when they are found or for missing individuals. There is no unified system in Canada for using DNA for missing persons at this point.

However, some provinces have provided assistance through DNA. For example, I understand that British Columbia, Alberta and Ontario will use DNA for finding missing persons. However, it involves more the coroners and local administration in how to do that. In terms of the technology, we were very prescribed in the Swissair situation.

Senator Milne: What about the feet in B.C.? Those are potential crime scenes from which you take samples and test them.

Mr. Fourney: This relates to one of the curious features of our act. I recall one particular case. I do not know the specifics, but it was a headless torso, no arms. Obviously, this is a victim of foul play. They presumably know where the crime scene may be. However, we cannot put a sample from the torso of that victim into the crime scene index to search any of our repositories.

The Chair: Is that because the body is not considered a scene?

Mr. Fourney: No; the body is considered a victim, and the act precludes the use of that in the Crime Scene Index.

We had another instance where it was a sexual assault on a young female victim. A sweater was removed, put over her head and she was assaulted. During the course of that assault, the accused had taken the sweater with him and proceeded to commit two more sexual assaults. As the third sexual assault was being committed, somehow the sweater was left behind. From what I was told, the hair found on the sweater matched that of the first victim.

However, they had to determine that through a process of investigation. They processed the hair from the third incident and found that the DNA did not match the third victim. Therefore, the question arose, whose sweater was it? The link for all three assaults was the hair found on the sweater.

They were unable to put that into the Crime Scene Index. Essentially, we cannot put volunteer or victim samples into the Crime Scene Index. Therefore, there is no way to match any of that. It was through considerable diligence in the police investigations from three separate serial events that allowed them to finally piece this together.

A question posed before the committee in the past, certainly in the lower house, was whether it was possible for someone to volunteer a sample to be put into this index. It could help to not only to find the perpetrator but could exonerate someone falsely accused. A significant question here is what are the privileges that we should afford a person to put a sample into the crime scene index in the interests of investigation leads?

As Mr. Bird already mentioned, the Crime Scene Index for the National DNA Data Bank is highly regulated.

Senator Milne: It concerns me that you say that the severed part of the body in that case, the foot, is a part of the victim. However, the point where that foot is severed is part of the crime scene, is it not? Why can DNA not be taken?

Mr. Bird: DNA cannot be added to the Crime Scene Index because there is a provision in 8.1 of the DNA Identification Act on top of what is eligible to be included. Section 5(3) of the act sets out that you can put anything found at the scene of a designated offence, which limits it to those on the person, on the victim or on the place. It is very broad, but it has to be read in conjunction with section 8.1, which says that if it is a victim or an eliminated suspect, it has to be immediately removed from the Crime Scene Index. This also means if you know that beforehand, you cannot put it into the index.

The end result is that once you have identified someone as being a victim of a designated offence, their profiles cannot go into the index. However, anything found on a victim, for example, the victim of a sexual assault, the potential suspect's DNA can be put into the index, but the victim's DNA could not.

When I listened to the debates back in 1998, I believe the theory was that the DNA data bank would be maintained by the state. Only people potentially involved with the commission of a crime should be kept in this data bank. Therefore, the people who were not involved in the commission of a crime — eliminated suspects and victims — would be removed or not put in the data bank at all. It is a philosophical approach to what would be allowed to be kept in the National DNA Data Bank.

Senator Milne: Even if it is a means of identifying the victim.

Mr. Bird: Exactly.

Senator Milne: That might be something to examine in our recommendations, thank you.

Mr. Yost: If I may speak more generally on the creation of a missing person index, the other house had a private member's bill. I commend to you the evidence they heard from Mr. Bird, myself and Karen Sallows from Public Safety Canada at the time. Much work has been done on that. I chaired a committee that dealt with the legal aspects.

We think we have ways of getting around some of the problems, such as who has authority to say that you are missing? We tend to think of the four-year-old child who has gone missing. In that case, it is the parents, but when an adult goes missing, they may want to be missing. The person to make the report may not be related — your flat mate, for example. We could do it using consents, et cetera.

It has become bogged down in the operational issues. In particular, what agency or force has the capacity to respond to this above and beyond everything else they have to do? I am sure the police would like the labs to do more. Senator Baker was referring to what the RCMP has been doing in trying to increase its throughput, et cetera. However, if you have missing persons added to the workload, the chance that they will spend more time working on a missing person's DNA and put aside a homicide investigation is minimal.

The issues can be overcome legally. Dealing with them operationally will be more difficult. The labs simply do not have, at this moment, the capacity to take this on. That is where it is at.

Senator Dickson: I want to follow up on a point of Senator Milne's about a missing person index. Many people, particularly parents, are concerned about that.

From a public policy perspective, I was interested that it has been thought of. Further study is a good idea, but it is probably a question of whether we have the financial resources to go forward. Am I right in saying that?

Mr. Yost: That is a fair summary from the justice point of view. Fortunately for us, we do not have to find the funds for the RCMP to do this, for Ontario to do it through the Centre of Forensic Sciences or for Quebec to do it.

From of an outsider's view, I am well aware of the financial and demand pressures that exist in the current system. Therefore, as I see it, there is no great desire to take on something new unless someone will provide the funding for it.

Senator Dickson: What is the cost to one of the provinces that are doing it? In other words, if it is Ontario, what is the cost? Do you know?

Mr. Yost: Much of that depends on what assumptions you make as to how many of these 8,000 or 9,000 missing persons on the Canadian Police Information Centre, CPIC, are searched for. Parents or others would come forward and ask us to check, giving us their DNA or what they have from their children from a hairbrush, et cetera.

I should defer to Mr. Fourney in terms of what numbers they have had in the United States and whether a similar ratio would apply to Ontario versus other provinces. I really could not tell you the cost.

Senator Dickson: Go ahead. Take a chance.

Mr. Yost: Sorry, Mr. Fourney.

Mr. Fourney: Thank you, Mr. Yost.

The missing person file has been an ongoing file for a number of years. We had a very significant workshop in February 2007, I believe, where we brought people from the various provinces, members, coroners, different groups involved with privacy and some membership from an ethics point of view. We brought in the people that run the U.S. missing persons index; that was my colleague at the FBI who is running that out of the Quantico group there.

The file itself is significant. We would like to assume is that DNA is a panacea for all that we need remedies for. However, in reality, many of the missing person files involve very good police work and diligence: dealing with fingerprints and other aspects of the investigative leads. DNA is simply one part of the tool box.

Just like in a mass disaster, many aspects of identification and good investigative leads will help identify those who are missing. However, it became apparent to us that it was a bit bigger picture than just one group setting up a national service because some of the provinces already have a fairly structured missing persons program. Ontario, in particular, has a very good and effective program as does British Columbia. My understanding is that Alberta has looked into this, as has Saskatchewan.

Therefore, there are already a lot of best practices out there, and we should be working together with to create a national system. Part of the challenge was to urge what is already working very well provincially and to make it into a national system. Although there was not a legal question with respect to missing person jurisdictional rights — because I think my colleague, Mr. Yost, has answered that through his working group — logistic issues still exist on how to share information between the provinces.

To answer your question, the cost of simply doing a DNA sample may not be great, but the coordination, the systematic approaches to reviewing all the information and putting it together as a large package can be quite expensive. Remember, also, that this is primarily for a humanitarian purpose and that means other folks have to be involved in making some of these very important decisions.

I know in California, which runs a very effective missing persons index, it turned out that the laboratory component of the missing person is equally as substantial as the group that deals with the front-end information gathering, coordination, interviewing of the various persons that may be involved, et cetera.

Surprisingly, not many of the missing persons identified in the U.S. are linked to criminal activity. That is surprising because many people feel it is always foul play. In fact, many people are missing for various reasons. I do not know how accurate this is, but it is quoted that 95 per cent of people reported missing on Monday are usually found by Friday.

Therefore, the question also becomes: What constitutes a missing person? When do you take action? Obviously, if it is a small child or there are different considerations dealing with the missing person, that activity starts almost immediately; whereas there are other circumstances where people tend to go missing during the warmer months and are found back in September.

Now, they may have different reasons for being missing, but the very basic issue of what constitutes a missing person becomes somewhat of a question itself.

I do not have an exact number because, if I was just to give you a number on what it costs to do DNA, it would be the tip of the iceberg with respect to a missing persons file.

The Chair: We are well into overtime.

Senator Dickson: Can I leave with one last question?

The Chair: Mr. Yost has a comment first.

Mr. Yost: I wanted to assure the committee that the file is not inactive. The Ontario Provincial Police, OPP, hosted a meeting in November that had coroners, many police forces and laboratories getting together for a couple of days to discuss a national system for trying to find missing persons. I am sort of tangentially following that because DNA is actually a very small part of what they are discussing. The very front end of this and moving quickly and nationally to find someone is what their main focus has been.

Senator Dickson: The only point I wanted to make is that Senators Baker and Bryden and I are from Atlantic Canada. Therefore, we would be interested in piggybacking on Ontario's goodwill and assistance.

To what extent have police departments in Atlantic Canada been cooperating with the other jurisdictions; in other words, how much have they been using their services?

The Chair: Do you know?

Mr. Fourney: I can tell you that everyone has access to the component of CPIC that involves missing persons. Any file of missing persons is taken very seriously and acted upon, whether it is in Western Canada or Eastern Canada.

I think some provinces, perhaps, have developed a system that is integrating the DNA a bit faster than others.

Senator Joyal: Mr. Yost, did I hear you well when you were commenting about the list of the primary designated offences, specifically that you would like to see terrorism and human trafficking added to the list?

Mr. Yost: When I look at the lists of offences, I tend to think that terrorism and human trafficking offences, by their very nature, are more comparable to the other offences in that list of 16 than assault with a weapon, which, as Senator Baker has pointed out, could be a very minor event.

I have difficulty seeing terrorism and trafficking in persons as being a minor situation, so I would put it that way. It is closer to the other 15 in the list than is perhaps the assault offence that Senator Baker has raised.

Senator Joyal: Human trafficking is on the list and terrorism is not on the list.

Mr. Yost: However, it is not as a mandatory designated offence. If there is to be mandatory offences, is that list of 16 the right list of mandatory offences, or are there others that should be added?

Senator Baker: It is in the primary offences.

Mr. Yost: Primary, yes, but it is not a mandatory offence.

Senator Joyal: Okay. I say that because they are, of course, in the primary designated offences.

Mr. Yost: Yes.

Senator Joyal: They are per se part of the serious crimes that are the object of the order of the court to provide DNA.

Mr. Yost: I would like to think that we are getting everyone involved in criminal organization offences into the data bank. However, the reality has been that primary designated offences are being missed, and I do not know to what extent that is a problem now, and I also do not know to what extent making some of them mandatory has made a difference as to the submission rate we are getting with respect to those specific offences. We do not actually have any real information.

I am certainly unaware of any case where a judge refused to put in someone convicted of homicide by saying that he or she does not think this person should be in the DNA databank; rather, they have missed them. They may still be missing them even though it is mandatory. However, we do not have that sort of information.

The Chair: Thank you all very much. This was a truly fascinating session. We are very grateful to you. It would be nice if we did not have to call you back, but who knows? We may, as our labours pursue. We will see Dr. Fourney yet again when we come to visit his data bank.

Mr. Fourney: Yes, absolutely.

The Chair: That will be great fun for all of us.

Corporal Derksen, Mr. Fourney, Mr. Yost, Mr. Bird, we thank you all very much indeed.

(The committee adjourned.)


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