Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 5 - Evidence for April 2, 2009
OTTAWA, Thursday, April 2, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:49 a.m. to study on the provisions and operation of the DNA Identification Act (S.C. 1998, c. 37).
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, I see a quorum. Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We have witnesses with us whom we are delighted to welcome; however, before we get there, Senator Joyal has just announced that he has a point of order.
Senator Joyal: It is a quick point. I ask for the leniency of our witnesses this morning. I want to bring to the attention of the committee a decision of the Ontario Court of Justice last week, March 17, in relation to the DNA data banks in relation to youth. The court has ruled as unconstitutional the provisions of the code in the second categories of designated offence in relation to youth. This decision involves a case with Her Majesty the Queen and a number of youth.
I would like for you to circulate the decision to the members of the committee.
The Chair: I will ask the clerk.
Senator Angus: Senator Baker has done a good job.
The Chair: Those senators who have not been informed by Senator Baker will refer to the clerk.
Senator Joyal: The second one is a decision of the Supreme Court of Canada in relation to the youth criminal justice system, which confirms the distinction between the criminal common law system versus the youth justice system. It confirms the distinction between the two. In a way, it is related to the decision of the Ontario Court of Appeal. It confirms the principle of the autonomy of the youth criminal justice system in relation to the common law justice system.
The Chair: How fortunate we are to have with us witnesses on these matters, as we continue our study on the provisions and operations of the DNA Identification Act.
[Translation]
We welcome today the Honorable Peter Cory, member of the National DNA Data Bank Advisory Committee, and, as we all know, former Canada Supreme Court Justice, as well as Mr. Richard Bergman, Chair of the Advisory Council. We are happy to have you here. As you have understood, this a complex issue we are very interested in.
[English]
We know that your reflections will be extremely useful in our work. I understand that Mr. Bergman will make an opening statement, followed by Mr. Cory. Then we shall then go to a question period and ask you questions. The floor is yours, Mr. Bergman.
Richard A. Bergman, Chairperson, National DNA Data Bank Advisory Committee: I thank the committee members for the invitation to appear before you this morning. I am appearing here today as Chair of the National DNA Data Bank Advisory Committee, with my colleague the Honourable Peter Cory. We have both served on the committee since its formation nine years ago.
My last appearance before your committee was in 1997, when I appeared as the Deputy Commissioner National Police Services, with Dr. Fourney during the consideration of the first bill to create a national DNA data bank. Following my retirement in July of that year and a subsequent prorogation of Parliament for an election, and the re- introduction of the legislation during the following spring, this committee recommended the formation of the National DNA Data Bank in 1998.
The National DNA Data Bank Advisory Committee was then established through regulations several months before the data bank opened officially in June of 2000. The committee is composed of eight members, consisting of a chairperson, a vice-chairperson, a representative of the Office of the Privacy Commissioner, and up to six other members who may include representatives from police, legal, scientific and academic communities. Committee members are appointed by the Minister of Public Safety. The committee reports directly to the Commissioner of the RCMP. The role of the committee, as stated in the regulations, directs that the committee shall, on its own motion, when the committee considers it necessary or upon request of the commissioner, advise the commissioner on any matter related to the establishment and operations of the National DNA Data Bank.
The committee generally meets for two or three days at a time, normally twice per year, in Ottawa. Meetings have also occurred in Vancouver, Toronto and Halifax. Seven of the eight present members have served continuously on the committee since its establishment. The representative of the Office of the Privacy Commissioner has changed from time to time since the year 2000.
The committee is fortunate to have within its membership a number of experts in various fields. Dr. Ron Fourney, Director of National Services and Research, RCMP, with whom you are well acquainted, joined the RCMP forensic laboratories as a civilian member in 1988; his role is to lead the development of DNA technologies within the laboratories. His technical stewardship ultimately led to the first acceptance of DNA evidence by a Canadian court, followed by his role in the development of the National DNA Data Bank.
Dr. George Carmody, Emeritus past Associate Professor of Biology, Carleton University, and vice-chair of our committee, recently chaired a subcommittee of the U.S. Scientific Working Group on DNA Analytical Methodology, which published an important paper on moderate matching techniques. He is considered to be one of North America's leading experts in population genetics.
Dr. Frederick Bieber, Associate Professor of Pathology, Harvard Medical School, is a board-certified medical geneticist and has published extensively on familial searching, served on several expert DNA committees in the U.S. and internationally, and was a member of the U.S. Department of Justice Kinship and Data Analysis Panel to assist in the identification of those lost in the World Trade Center tragedy.
Dr. William Davidson, Professor of Medical Genetics and former Dean of Science, Simon Fraser University, has published extensively on molecular evolution, population genetics, genomics and human genetics. He is currently a principal investigator on the Atlantic Salmon Genome Project.
Ms. Gisèle Côté-Harper, Professor of Law, Laval University, has served on the Canadian Human Rights Tribunal, the Quebec Human Rights Commission, and the RCMP Public Complaints Committee and is an independent expert on the United Nations Human Rights Committee.
The most senior member of our committee is, of course, the Honourable Peter Cory, a retired Supreme Court Justice and Chancellor Emeritus of York University. His distinguished background is well-known to all of us and his accomplishments simply too numerous to detail this morning. However, our committee has profited immensely from his wise counsel during our many meetings.
Ms. Chantal Bernier, Assistant Privacy Commissioner of Canada, was recently named to our committee and will be attending our next meeting at the end of this month.
It should also be noted that although they are not members of our committee, we have benefited from the information and guidance provided to us by Mr. Greg Yost, senior policy analyst, Department of Justice, and Mr. David Bird, RCMP Legal Services, both of whom attend all our meetings and complicate our discussions from time to time.
While Mr. Cory and I are pleased to appear here today, I believe it would be extremely beneficial to your committee to hear the views of several experts on our committee who are not with us today.
Our meetings include extensive briefings by the officer in charge of the National DNA Data Bank, the manager of the data bank computer system, DNA research officers, field training coordinators and retroactivity project representatives. Also included are briefings from the Ministry of Public Safety, the Ministry of Justice and RCMP Legal Services. Representatives from DNA operations representing the RCMP's regional laboratories, the Centre of Forensic Science in Toronto and the Laboratoire de sciences judiciaries et médicine légale in Montreal also attend our meetings when available.
From time to time we are also able to meet with senior officials from the United Kingdom's National DNA Database and the FBI's national DNA data bank in Washington, called the Combined DNA Index System. We also profit from advice provided through teleconference links with directors of other state DNA labs in the United States. In meetings outside of Ottawa, the committee has also met with senior serious crime investigators from several police forces and provincial Crown prosecutors. Committee members have also participated in national and international scientific conferences and made presentations to several national and provincial judicial conferences here in Canada. Our committee produces an annual report each year, which is publicly available on the Internet.
During the early years of our meetings, the officer in charge of the data bank provided briefings and updates on a number of technical legislative issues that required clarification in order for the data bank to process samples effectively and efficiently. Recommendations to correct these issues were put forward and ultimately corrected through regulatory and legislative amendments.
For several years, the committee expressed its concern in relation to the apparent lower-than-expected rate of DNA orders following convictions for primary designated offences, the submission rate hovering around 50 per cent of the expected level or the anticipated rate. Over the years the rate has increased and, since the passage of Bill C-13 and Bill C-18 last year, the rate has grown quite rapidly. Submissions to the Convicted Offender Index have almost doubled, from approximately 18,000 to almost 32,000 per year since the recent amendments, a rate the DNA data bank can effectively accommodate with its existing staff and equipment inventory at this time.
In recent years the committee has followed the progress of DNA legislation in several other countries, notably the U.K. and the United States. There has clearly been a move toward the expansion of DNA data banks, especially in the United States, where 46 states now require that all convicted felons provide a DNA sample to the state's databases. In addition, 11 U.S. states specify certain misdemeanours among those who must provide a DNA sample, and, to date, 15 states have passed laws authorizing arrestee sampling.
The committee is aware that our post-conviction system in Canada is complex and does provide a considerable challenge to the judiciary and prosecutors at the time of conviction, as well as to police during the subsequent process to obtain a biological sample from a convicted offender. We do, however, appreciate that the taking of DNA samples for crimes at the time of arrest could not only lead to an earlier solution of some crimes and the linking of serial crimes, but also to the early elimination of suspects, thus helping to focus investigations.
At the same time, the committee has been informed by the Department of Justice that the taking of samples upon arrest could increase the sample input to the data bank dramatically, perhaps up to 175,000 or 200,000 samples per year, over five times the present rate if applied to all designated offences. However, this figure is likely based on an estimate of all arrests and may not recognize that due to recidivism many of the new arrestees will already have provided DNA samples to the data bank following prior convictions. The proportion of recidivists in the arrestee population is expected to increase as the data bank continues to mature. We are advised that this factor has been experienced in several U.S. states.
Regardless of the actual number, the taking of samples for DNA upon arrest would obviously significantly increase the sample input to the National DNA Data Bank and would in all likelihood result in a considerable increase in matches. However, it would also require a substantial resource increase in both staff and instrumentation to the data bank. As well, we are informed that approximately 30 per cent of arrests do not lead to conviction because of charge withdrawal, acquittals and dismissals. This could result in the National DNA Data Bank being required to expunge the data links for up to 50,000 arrestee profiles per year, as well as the destruction of the associated biological samples, which represents another significant resource challenge.
The committee is of the opinion that the present post-conviction system has served Canada well during the past nine years, and match rates have grown in parallel with the growth of the data bank during that time. While we do not favour a move toward the blanket authorization for the taking of DNA upon arrest, it is the committee's view that consideration should be given to authorizing the taking of DNA upon arrest through a carefully constructed system to include only those offences, committed by adults, that are contained in the primary compulsory and primary presumptive categories in section 487 of the Criminal Code. We continue to hold the view that young offenders, due to their impressionable age, should be subject to a DNA order with discretion only after conviction.
Should your committee wish to pursue this issue in more depth, I would again encourage you to arrange for the appearance of all our members, some of whom have considerable experience and knowledge of the ongoing effects of this type of legislation.
Another important issue that has surfaced in recent years is generally referred to as familial or kinship searching. First introduced in the U.K. several years ago, the technique relies upon shared DNA profiles amongst closely related individuals to identify possible suspects who might be related to a convicted offender, whose DNA is already in a criminal offender or forensic investigative DNA data bank. This technique has been used successfully in approximately 16 per cent of 160 high profile cases in England conducted by the Forensic Science Service. It has also been utilized in Australia and Europe. In the U.S., its most significant application led to the exoneration of an individual in North Carolina who had served 19 years in prison for a rape and murder that were actually committed by the brother of the convicted offender, who was eventually identified as a close DNA match to the criminal offender in the data bank.
The application of this technology is not a routine procedure and does involve more analytical and computer analysis, as well as more investigative effort than that required in a routine case. Familial searching was not considered by Parliament and the Senate when the DNA Identification Act was passed in Canada in 1998 since the technique had not been developed at that time; nor has it been utilized by the DNA data bank in Canada. The product of a familial search is a list of offenders whose DNA profiles are close but not perfect matches to crime scene evidence in unsolved crimes. Many if not most of the individuals on such a list would have no involvement in the crime and therefore additional DNA testing as well as investigative efforts are necessary to avoid unnecessary intrusion on uninvolved persons.
As forensic genetic technology progresses, such as the application of Y-STR analysis and software advancements, it is anticipated that the list of possible close matches generated by this technology will become more focused, more accurate and more specific. At present the list of possible matches could be narrowed down by traditional police investigative techniques, such as age, geography, accessibility or proximity to the crime scene, and other evidence associated with the crime scene.
While the familial search procedure has been quite successful in a limited number of cases in some jurisdictions, it does by design associate some innocent citizens with the crime scene profile and consequently has been described by its detractors as a form of genetic surveillance, which potentially shifts the purpose from the individual to a family unit. Other critics of this technology point to racial disparity in our correction system and suggest that the product of a familial search is a form of racial profiling. Our committee has considered and discussed the policy, ethical and Charter ramifications associated with this issue as it has developed for several years.
A decision to authorize the use of familial searching in Canada can occur only after a careful and in-depth examination of its benefits within the context of the right of the state to investigate and prosecute offenders versus the privacy rights of Canadian citizens. This issue clearly requires input from a wide variety of interest groups in this country. Our committee has not reached a consensus on the issue of familial searching. In our opinion, the use of the National DNA Data Bank as a forensic tool in Canada for the past several years has been well accepted by Canadians due to the extraordinary privacy provisions associated with its use as authorized by Parliament and the Senate, as well as the privacy and security safeguards included in the design of the National DNA Data Bank itself.
While I personally believe that it is premature to authorize the use of this technology in Canada, if Parliament does ultimately decide to authorize the use of this technology through legislation, our committee would recommend that the legislation be accompanied by clear guidelines and controls: first, familial searching should be applied only in the case of the 16 primary compulsory crimes listed in the Criminal Code; second, there should be a formalized approval process in place to authorize the procedure only after it can be clearly demonstrated to an authoritative body that no other evidentiary or investigative leads are available. The authority should be the judiciary, as is the case with the Criminal Code DNA warrant process.
One further issue I would like to touch upon concerns the original decision by Parliament to inhibit the inclusion of victims within the Crime Scene Index of the data bank. Cases have occurred where biological samples from victims have been carried from one crime scene to another — in one case on a piece of clothing. It could also occur on a weapon such as blood on a knife. If the clothing were then retrieved at a subsequent crime scene, the victim's DNA profile would then link the offences as serial in nature. When eventually arrested, the involvement of the arrestee in several offences could then be validated through the victim's profiles common to the serial offences.
Our committee would suggest that victims' DNA profiles should, on a voluntary basis, with informed consent, be authorized by law to be included in the Crime Scene Index. However, their DNA profiles should only be searched against other profiles in the Crime Scene Index and should not be searched against profiles in the Convicted Offender Index. They should also have the right to request the removal of their profile at any time.
In the case of unidentified human remains, where there is evidence that the remains are those of a victim, such as bullet wounds, the law at present does not allow the police to search a DNA profile generated from the remains against the National DNA Data Bank, even when there is a strong suspicion that the DNA profile of the victim is contained within that data bank. We believe an amendment to allow this type of search is justifiable. We would suggest that this type of search target both the Crime Scene Index and the Convicted Offender Index.
On behalf of the National DNA Data Bank Advisory Committee, I am pleased to state that in our opinion the data bank has been a significant success story to date. It is our hope that these hearings will address the issues set out in the Department of Justice discussion paper that I understand has been distributed to your committee.
I will be pleased to attempt to answer any questions you may have.
The Chair: Mr. Cory, I believe you are prepared to add a few remarks.
Hon. Peter Cory, Member, National DNA Data Bank Advisory Committee: There may be a difference between Mr. Bergman and myself with regard to the issue of samples on arrest. It may well be that I agree in the long run, but I do not think our committee as yet had the proper background for taking a position in that regard.
There really has to be a balanced hearing. What does the Canadian Bar Association's human rights committee have to say in that regard? What about that so often unpopular, but very necessary beast, the criminal lawyer and the Criminal Lawyers' Association? What does it have to say with regard to human rights and the fair operation of the justice system? It may well be that when you hear everything, you have a balanced decision.
However, I think any type of judicial decision, if it is to be balanced, should operate like an equilateral triangle with counsel on two sides and the judicial-type committee on the third. That way it can give a balanced decision. The entire work of the committee, to a large extend, is balancing the essential necessity of using DNA. DNA is a magnificent tool of identification, first with regard to the conviction of offenders, and second, in 26 per cent to 28 per cent of the cases in the U.S., DNA eliminates the prime suspect.
However, DNA will always have to be used in connection with that balance. If we are to carry out our function and advise the commissioner, we need to have the basis for that careful decision and the continuing need to balance human rights. One of the basic elements of human rights is privacy. DNA or the blood sample from which the DNA is extracted can demonstrate much with regard to the individual. It is not the same as a fingerprint.
I am proud of the method by which the data bank has been set up with regard to security, both the security of identification and of the samples themselves. There is an additional risk with regard to blood sample from which the DNA will be taken that I think deserves consideration.
Part of the problem here is how you get the DNA and how to get it as quickly as possible. Judges are really an awful group. They talk about things like judicial independence. They are stubborn and cantankerous, but necessary. However, they have not done a good job with regard to DNA.
I think the act should be amended in this regard. This should be an administrative item. There is less expectation of privacy after a conviction. Administratively, DNA should be taken as soon as a conviction is registered. It does not matter whether it is taken by police or by that magical officer, the sheriff of the particular judicial district. Whenever the case is on the list that can, in turn, lead to an order for DNA, that particular DNA should be taken. We are wonderfully protected because we say "not until you have been proven guilty beyond a reasonable doubt." At that moment, your expectations are gone and a DNA sample taken should be taken.
Parliament must deem what the appropriate crimes are for which DNA samples should be taken. That is important and appropriate. Some crimes lead to others. Something as simple and petty as a break and enter often leads to other far more serious crimes. DNA samples should be taken in connection with that.
I think two things could be done with regard to legislation and regulation. First is the automatic administrative task of taking a DNA sample the minute a conviction is registered. Second, as long as the victim provides informed consent, their DNA sample should be included for the assistance it provides to both the defence and the prosecution. It should follow.
It would also be relatively simple to amend the legislation so that when the data bank says there is no match, but there is a very near match that could only be from family members — brothers, father, et cetera — the data bank is authorized to advise the investigating force that this exists. They will still have to get the warrant to take the DNA of another suspect. This may be one aspect of the material provided to the justice for the warrant. It will still probably be necessary to have other evidence as well to obtain the necessary warrant to obtain the sample from someone else.
I am sorry to have taken so much of your time.
The Chair: Not at all.
Mr. Cory: This is so important. If we think, in a democracy, that the individual has a special significance — and we should — then privacy rights have to be considered and taken into account. This must be balanced against the necessity for proper investigation to ascertain criminals and the prevention of other crimes.
It will always be a matter of balancing. It may be that I would agree with taking the sample on arrest, but I would be remiss in my duty if I did not say that I mostly do not know enough. I would like to hear the other side of the coin before making a recommendation to the commissioner. There is another side sometimes, even to the Department of Justice. It is simply that we should hear it and be aware of it.
The Chair: Thank you both very much.
Before I go to the list of questioners, Mr. Cory, you mentioned a statistic from the United States where 26 per cent to 28 per cent of prime suspects are eliminated by DNA samples. Could you provide the clerk with the source of that?
Mr. Cory: Yes.
Senator Campbell: Thank you for coming today. It is good to see you again.
I would like to deal with familial searching. The U.K. is using it. Sixteen out of 160 is a significant figure when you are dealing with crime. What processes did they put in place in the U.K.? What did they do that made it acceptable to them, and would that work here to make it acceptable to the interest groups we will hear from?
Mr. Bergman: The process is legal in the U.K. In Canada, we can only release information from the data bank if there is a perfect match between the crime scene sample and the profile in the data bank. Otherwise, we cannot release any information.
Senator Campbell: Obviously, the U.K. would have had the same concerns expressed by the same groups about this. How was the U.K. able to overcome opposition, or did it simply say: "We are going to do it"?
Mr. Bergman: There has been a broad-brush approach in the taking of DNA in the U.K. DNA can be taken for any recordable offence for which you can be arrested. In Canada, our act, clearly and wisely I believe, is much more restrictive. We simply cannot take DNA from that broad base.
Technology has been under development for several years. It has been used in the United States as well in some cases. However, when you apply the technology, it does not produce a single candidate but as many 20 to 50 candidates. I would be comfortable with a process that was more specific. I do not think we want to be knocking on people's doors to determine whether they are involved in an offence. It is still a little premature.
Senator Milne: Mr. Cory, have you had the opportunity to review Justice Cohen's decision of March 17, 2009.
Mr. Cory: No, I am sorry I have not reviewed it.
Senator Milne: It is rather disturbing. Are you surprised to know that of the 21,000 samples collected by the DNA databank, only 535 samples have been destroyed so far?
Mr. Cory: No.
Senator Milne: These are samples of juveniles and young people.
Mr. Cory: A number of factors seem to come into play with regard to that. How many of those have been subsequent offenders as adults? That is not clear. The sample has remained in the databank not as a result of the original taking but as a result of the commission of a subsequent crime.
Senator Milne: I thought that a juvenile record was expunged.
Mr. Cory: It absolutely should be expunged.
Senator Milne: That would include the data in the databank, would it not?
Mr. Cory: It should include if it is to be fair and appropriate. The whole reason behind it, which I think is sound, is that young offenders do not have the capacity often to completely understand the nature of the offence or what they can do, and there is such hope for reformation. As a result, we will destroy the record of a young offender who now knows better. The principle and attitude make good sense and should be followed.
It is like taking the statistics and assuming there must be something wrong on that basis alone without hearing from those in charge about the problems that arise with regard to it. There might be a clear and logical explanation that I am not aware of to explain that. That would be known by those who take care of the statistics. We tend to think that young offenders should be treated distinctly and separately, and that there is such a sound, principled foundation for doing so. Obviously, there should be a removal of the DNA unless there is an explanation, but I have not had the opportunity to ask, "Do you have an explanation and what is it?"
Senator Milne: It seems to be contrary to the existing law. I quite agree with you that juvenile records should be expunged for the reasons that you have stated, but apparently that is not always so.
Mr. Cory: Courts may be at fault. How do we know what has happened at the Court of Appeal? It will issue reasons and judgment, but that information is not always communicated to the DNA databank. Something might have happened with regard to the young offenders and a decision is made but not reported to the DNA databank. I agree that an automatic system should be in place in relation to the age of the individuals that should be removed from the databank. I would like to hear whether there are other explanations as to why they are still in there.
Senator Milne: Perhaps Mr. Bergman will comment.
Mr. Bergman: I have been involved in a discussion with Dr. Fourney and Mr. Yost on this issue. I believe that if the committee were to put the question to those gentlemen, they could provide the answer. Certainly, the matter is being discussed between Mr. Yost and Dr. Fourney, but I am not sure whether the numbers are correct in that case. Generally, the record is kept for three to five years based upon the Young Offenders Act and the Identification of Criminals Act. The data bank did not grow rapidly for the first four or five years, so many of those records might still fall within that time frame. That could be clarified by Dr. Fourney and Mr. Yost.
The Chair: Does the committee wish me to write to the two gentlemen in question to ask for their explanation of these numbers?
Hon. Senators: Agreed.
The Chair: They can consider themselves notified, but we shall write to them.
Senator Milne: Mr. Cory, you suggest that victims' DNA profile should be on a voluntary basis. DNA can be used to identify unknown bodies that are found. How could you solicit voluntary agreement from the person whose foot washed up on the coast off B.C.? Some victims cannot give any kind of agreement.
Mr. Bergman: That would not be voluntary. In other words, the victim in that case is expired, and we believe that the act should contain the authority to search unidentified human remains, obviously without their agreement, against the National DNA Data Bank. Currently, we cannot do that.
Senator Milne: That is one of the contradictions I found in the evidence that has been before us. We might want to give that consideration.
The Chair: So many profoundly important issues are being raised in this inquiry.
Senator Joyal: This committee was well-advised to provide for an advisory committee. Your report and testimony today have justified that advice from some years ago. I see your role as a buffer between the police forces and the rights of individual citizens to have their privacy protected. The act is an effort at balancing the efficiency of the system versus the rights of individuals to maintain their private information. In the case of DNA, that information is much broader than the fingerprint because of the advances of technology.
Based on your experience, what will be the most important technological development in the years to come? What risk is associated with it?
Mr. Cory: It will probably come down to the identification. It is such a magnificent tool, and with identification would go the identification of the wrongdoer. As I said, it appears, certainly in the United States, that it may also eliminate the prime suspect. It will continue to play that role.
There will always be the cases that are difficult to work around. That has to do with when and how familial searching should take place, and the problems that arise from familial searching — what you are going to have to face and why it should be carefully crafted.
If you look at the inmates of our penal system, you will find a tremendous imbalance in the First Nations people that are there. In the U.S., it will apply to African Americans. They are represented so highly in the institutions that you will get questions. Is this stereotyping people? Are we searching them because of their race and, on a narrower ground, because of their family? Inferences can be drawn that would be unpleasant, which is why it has to be approached with a great deal of sensitivity.
Ontario has a second chance program; it does great work with young offenders in providing that second chance. They now have two engineers, one doctor and one lawyer, all of whom served time for a violent offence as a young offender or even a young adult.
When you go there to talk to them, what strike you are the faces. There are far more brown faces of First Nations than you would expect in any group of Canadians. Familial searching raises these implications. Are you condemning by race or family? That is why I think very careful conditions should be imposed with regard to familial searching.
It is a problem, because what if you do have the very close match — not the true match, but so close that it has to be a brother or a father? Should that be revealed to the police? Is it not simply another aspect of investigation that has become apparent? Is it then required for the protection of the community, if it was a violent sexual assault or a murder? How do you draw the balance? That is just to say the legislation will have to be careful with regard to familial searching. Very important social issues arise.
Senator Joyal: You see the implication for the Canadian fabric in the context of the prison population and the overrepresentation of some categories of citizens, is that correct?
Mr. Cory: Yes. On a visit to these institutions, it strikes any observer — the faces that are before you.
Mr. Bergman: I attended a genetic privacy symposium in Washington last year, as did some other members. That issue was discussed in great depth because in the United States, the Black population accounts for 13 per cent of the population but 40 per cent of the inmate population. That is a considerable difference; and individuals who quoted those statistics suggested that familial searching was a form of genetic surveillance of that particular racial group.
Senator Joyal: Dr. Fourney has presented the familial searching as being a next circle of expansion, to use that image. Before we move in that direction, you would advise us to wait for a refinement of the technology, and to take additional precautions that might not exist for some other categories of citizens submitted to DNA sampling.
Mr. Cory: Yes, just be cautious in the approach that is taken.
Senator Joyal: We could not just expand it to familial searching without additional safeguards very well spelled out in the legislation.
Mr. Cory: Yes.
Senator Joyal: The other point I wanted to raise with you is one of the recommendations you proposed in your presentation today concerning the identification of human remains. In that special context where the person is dead, would you say that the protection of privacy should be perceived differently than with a living person? In your presentation, I do not see any precaution that should be taken. You just propose to expand it in that category. Since you were so balanced in your presentation, I was wondering about that.
Mr. Cory: Dead people are so stubborn about giving their consent, and slow.
Senator Joyal: As you know, the person may have children and there is the reputation of the spouse and so forth. There are privacy concerns; there is no question about that. What do you see as a different context that calls for us to add that into the legislation?
Mr. Bergman: I see it as the public interest. It seems to me that the state would have a responsibility to try to identify a Canadian citizen who is a victim of a serious offence, such as a murder. Obviously you do not know who that person is. You cannot go to relatives. There is no way to obtain approval, but there is a responsibility upon the state to try to find out who that individual Canadian citizen is, if it is Canadian citizen.
Mr. Cory: You do not even know the family until you can do the testing.
Senator Joyal: I link that with the issue of the missing person, the missing person could be presumed to be still living, while the human remains mean the person is dead. There is a different kind of scale in terms of a system to be put into place in the context of missing persons versus what you have to identify in front of you.
Mr. Bergman: I believe so.
The Chair: I have a supplementary on this point. Does "unidentified human remains" mean a whole body? I am thinking of this ghastly situation on the West Coast where the feet have been washed up. Do they count as unidentified human remains the way you are considering them?
Mr. Bergman: Yes, they would.
Senator Campbell: From experience of 20 years as a coroner, I can tell you that as a matter of course, now that we have DNA, we run it automatically for a number of reasons. If it is an unidentified body, it is our responsibility to identify him or her and DNA is one of the tools — along with other forensic tools such as fingerprints, teeth, tattoos or whatever.
More importantly, in many cases we do not identify them at that point. However, at some later point down the road, we are able to find a family and so we actually do a reverse. For instance, we believe that we have found the mother. We will get the mother's DNA and do a reverse search, running it through the DNA bank we have.
The Chair: By "we," do you mean British Columbia or the RCMP?
Senator Campbell: The RCMP.
Mr. Bergman: Under the existing law, we cannot search a victim against the National DNA Data Bank.
Senator Campbell: Then what were we in B.C. comparing it against?
Mr. Bergman: You may have been searching against the local profiles contained in the CODIS system Vancouver laboratory, because it has a data bank of local cases. Some profiles may not be submitted to the national level. For instance, a profile developed from a discarded cigarette is kept locally.
Senator Campbell: For the most part, that would not have been something we would do. If, for instance, we had an unidentified body and it was clear the person died as a result of foul play, would I be able to send it to your lab?
Mr. Bergman: Victims cannot be searched against the national data bank.
The Chair: This came up at an earlier hearing and it was a source of considerable frustration.
Senator Joyal: On the same point, I tried to figure out a scenario whereby you are confronted with the human remains and the police have the suspicion that the person might be the victim of an organized crime group. We know that the greatest number of victims these days are victims of organized crime.
If the RCMP or the provincial police patrol, or whoever leads the investigation, could search the dead victim, they might find in the data bank the profile of someone who has already been convicted.
Senator Angus: And is now dead.
Senator Joyal: Yes. I do not say there is no impact, but since there is less impact in that context, how would you frame amendments to the code that would still provide the protection needed and, of course, help the police to conclude the identity, and eventually the identity of the person who is guilty of that murder?
Mr. Bergman: I do not believe the amendment would be too complicated. It would simply be an amendment that would allow the police to search and identify human remains against the National DNA Data Bank, the Convicted Offender Index and the Crime Scene Index.
I am not sure that I see a problem with privacy. Obviously, the person would have relatives, and it would be the responsibility of the investigating police to then inform the relatives that identity is established. I do not see that particular issue as being too complicated.
On the issue that Senator Campbell raised, I believe the coroner's lab in Vancouver has its own DNA data bank; they have their own collection of DNA for missing persons.
Senator Campbell: Yes. There are two different issues here. One issue, to use the big example, is Pickton, the convicted murderer in British Columbia. The DNA that was collected there would in many cases have to be relied upon by backtracking to the family.
The second issue is when someone reports to the police that their 17-year-old daughter has gone missing. In both cases, we should have a data bank for when we find someone who is reported missing, wherever it is in Canada. It is fine that we have a data bank in B.C, but what happens if the person is from Alberta and we have no idea they are missing from there?
There should be a national repository. We can set a time limit that they have to be missing for a certain period of time, perhaps a year. When I became chief coroner, we had unidentified bodies. When we buried them, we kept all of our samples, and we started working back through missing persons.
From my point of view, there is no privacy issue here. We are not using this for nefarious ends; we are using this to identify a human being who has been buried as John Doe or Jane Doe, and the family has reported them missing. From the criminal point of view, you are right; by the time we find that body, we may not know whether or not a criminal element is involved.
I believe there should be a repository of every missing person in Canada so that no matter where I am when I find a body, or remains, or a bone from which I can get DNA, it can be matched against that list and we can say it is none of these people. I have great difficulty seeing this as a big privacy issue.
The Chair: Do the witnesses care to weigh in on this?
Mr. Bergman: Our committee has, for several years, achieved consensus on that issue. We fully believe there should be a missing persons index in Canada. I understand the issue is still with the Department of Public Safety, and I think there is a committee involved with the attorneys general across Canada dealing with the issue. However, no major results have been achieved at this point and there is no consensus in the committee on how to do this. There are some provincial jurisdictional and funding issues involved. Department of Public Safety representatives have not reported back to us that they have achieved consensus. However, we fully support the development of a missing persons index.
Senator Campbell: That would require a change to the act.
Mr. Bergman: It could be a new act or an associated act.
Mr. Cory: Certainly the National DNA Data Bank could fulfill that role with regard to the missing persons index and is prepared to do so. However, it is a question then of the legislation in order to do it.
Senator Milne: My question is on the same issue, and I would like to hear your opinions. What about a person who goes missing deliberately, who wants to disappear from his family or from whoever; and subsequently, 5 or 10 years later, he has gone from B.C. and his body is found in Quebec? Should the Privacy Commissioner weigh in on that? Should that person be identified if he has decided he wants to go? How do you get around that?
Mr. Bergman: If the person were still alive and an identification were made through the DNA Data Bank, and that person did not want to be identified to parents or relatives, I think you would simply respect that privacy. If the person had died, then I think the state would have some responsibility, as we discussed, to look into that and try to identify that individual and inform the relatives of the passing.
Senator Milne: Your right to privacy in this case would end with death?
Mr. Bergman: That is what I would propose, senator.
Senator Joyal: If that issue has been canvassed, perhaps we could move on to the suggestions you made about the victim's DNA profile, which is an important point also. As I understand it, you suggest that a victim could voluntarily offer a sampling. However, you conclude that the search would be limited only to the Crime Scene Index and not to the Convicted Offender Index, because the person is a victim, so he or she is still presumed innocent of everything.
What is the other protection that you would like to see in the legislation to ensure that person's privacy is protected in the future once the crime or the investigation is completed?
Mr. Bergman: It would go in voluntarily with the right to withdraw at any time. Thinking further down the line, for instance, if that victim's sample resulted eventually in a series of offences being tied together and linked to an arrest and a charge, then at that time I suggest that the legislation should contain some particular clause to ensure that that sample then is delinked from the data bank. Of course, the individual would then be able to request that at any moment.
In terms of searching against the Convicted Offender Index, I believe it is insensitive to ask a person to offer their profile as a victim and then tell them, "We will search that against the Convicted Offender Index." They are a victim. This is a personal opinion.
The Chair: You are the chair of the advisory committee.
Mr. Bergman: I am not sure there is consensus on all the issues.
Senator Joyal: Is there consensus among the members of the committee on those two issues that we have canvassed?
Mr. Cory: On those two, yes.
Mr. Bergman: Clearly, there is consensus on those two issues, but the difficult issues are familial searching and the taking of DNA on arrest.
Senator Joyal: It is still a work-in-progress?
Mr. Bergman: Yes, it is a work-in-progress.
Mr. Cory: We have not exhausted our rights to appeal yet.
Senator Angus: Thank you, gentlemen, for most interesting commentaries.
First, on the issue that you raised of someone who is convicted, I understood there to be a recommendation that a sample should be taken immediately. Did I get that correct? Mr. Justice Cory, I think that was one of the areas where you differed from Mr. Bergman. Is that correct?
Mr. Cory: I do not know whether we differed. It should be taken immediately upon conviction.
Senator Angus: Is that regardless of whether there is an appeal?
Mr. Cory: Yes, but the effect would be as it is now. If there is a successful appeal, the sample must be removed if that is the result of the appeal. In the meantime, it is in there. It is a convicted offender until the court of appeal says otherwise. Even then, you get into the complicated issue about what to do with one where the court of appeal says there should be a new trial. If there has not been acquittal, simply a new trial, then do you hold the sample until the result of the new trial or do you take it out and put it back in on the second conviction? There has already been one conviction, so I would say it stays in until the result of the new trial.
Senator Angus: Can it be used as evidence in the new trial?
I understand that in these cases these people are being convicted of one of a special list of criminal offences. A sample in the data bank does not exist up to that point.
Mr. Cory: Up to that point, yes; it is only on conviction.
Senator Angus: They have been convicted, so there is no Charter or legal reason to prevent that sample being taken. Or does it require the amendment to which you referred?
Mr. Cory: It does require an amendment, because right now some discretion is with the trial judge with regard to taking the sample. It is the trial judge's responsibility whether a DNA sample is taken. It is my position that if it is within the legislation then, on conviction, that sample will be taken; it should be simply an administrative act of taking it automatically upon conviction.
Senator Angus: I am trying to visualize it as one does as a lawyer. You are in the courtroom and the judge renders the decision. The person may or may not be taken away at that point. The sentencing may not have happened, but there has been a conviction. If we have an amendment, I suppose it will stipulate that the sample be taken there and then.
Mr. Cory: Yes.
Senator Angus: Is there a process then? I am not as familiar as my colleague Senator Campbell is from his other life. What is the process? Is a blood sample taken there and then?
Mr. Cory: Yes, right then, because it is the blood sample from which the DNA is obtained. It is a pin prick process.
Senator Angus: The person then goes away to come back, for example, on February 14 for sentencing. Do you understand where I am going?
Mr. Bergman: In actual fact, sometimes a person is convicted, and when the judge makes a DNA Order, there is no police officer in the court. The person is released and then the police must find him, bring him back and take the sample. The process Mr. Cory is referring to takes place if no discretion was involved. The sample would simply be taken automatically, as soon as possible after conviction.
Senator Angus: It makes a lot of sense to me. It is rare that the judiciary would make a mistake, but I am thinking of a case that was overturned. You have given the fail-safe on that. It cannot be used against the accused in the second trial?
Mr. Cory: No.
Senator Angus: Thank you very much. I have many other questions but I would like to become more conversant with these issues.
Senator Bryden: Thank you, gentlemen for coming here today. In particular, Mr. Justice Cory, I may run the risk of trying to suck up to the judge — I will not do that — but it was most refreshing for me to hear the brief and extremely well-balanced assessment of where we are on this issue that you were able to share with us this morning.
It will probably be unfair to do this, but, in order to give an indication of the concerns that we must deal with, the judgment that came down from Mr. Justice Cohen recently, involving Her Majesty and a number of juveniles, contains some disturbing things. I know you have not had a chance to read it, and I have not had a chance to read it all. Someone asked what happens to the DNA and the material that it was taken from when the DNA is no longer needed. I think it was indicated, and it may have been in relation to youth, that it is destroyed if charges are not laid or if the accused is found not guilty.
At the end of this, Judge Cohen indicated where we started from in 2001. The list comes out of R v. Briggs. The DNA legislation was here. Primary offences are the most serious offences in the Criminal Code and include murder and sexual offences and so are subject to DNA. Secondary offences such as robbery are less serious than primary offences but are serious on their own. In 2001 a judge had discretion to make an order authorizing the taking of a sample of DNA with respect to both primary and secondary offences, although that discretion would appear to be more limited with respect to primary. That is the way it was in 2001.
The situation has changed dramatically. Evidence was brought before this trial in answer to the question of what happens to the DNA of youth. Isabelle Trudel testified that by January 7, 2009, the National DNA Data Bank had received 21,169 biological samples provided by young persons. As of December 8, 2008, a total of 795 of those 21,000 had been removed from access and destroyed. Of these, only 535 had been destroyed because the retention period had expired. While it is true that the records retention period will be extended if a young person commits further offences or offends as an adult during the retention period, the judge found it unreasonable to draw an inference that all but 535 of the young persons who provided their bodily samples fell into this category. That would mean that 97.5 per cent of young people who were subject to DNA orders had reoffended in a manner that would trigger a material extension of the records retention period.
It was, in her view, much more likely that those figures were evidence of a failure to comply with the provisions of the DNA Identification Act, and she so found.
Ms. Trudel also testified that DNA samples used to generate DNA files for young persons for comparative purposes formed only a portion of the total bodily substances provided by the person. The remaining bodily substances, which contain the entire genetic makeup of the sample providers, are not destroyed but maintained indefinitely in the National DNA Data Bank in the same manner as are bodily substances and DNA profiles of adults, which are retained indefinitely.
The judge said she was not satisfied that the removal of access or destruction of samples of DNA taken from young persons was actually taking place in accordance with the legislation or that it had been established in the evidence before her that, while access to the DNA profile may have been severed in a very small percentage of cases, the DNA sample containing the entire genetic makeup of a young person is never destroyed. She said that there may be good scientific reasons why samples rather than profiles would be kept.
Anyone reading this judgment who is concerned about justice, and youth justice in particular, has to try to find the answer to that.
Mr. Cory, do you have a comment on that? I know the question is unfair because you have not had the opportunity to read the whole judgment. However, that was a superior court and a respected judge.
Mr. Cory: As I said, I would like to hear from the people who keep those records what their position is. There may be an appropriate explanation. If there is not, then of course it is a matter of very serious concern. In fairness, I would like to hear from those who are responsible for keeping our records before I go further with this.
Senator Bryden: I understand that. I have one supplementary question.
Following on from the tremendous change that has taken place since 2001, this judge speaks about the changes that have occurred with the addition to the Criminal Code of new offences or major offences and rebuttable offences that people need to handle. Under the legislation as it stands now, a 12-year-old who grabs a baseball hat from a playmate and runs away with it can be found guilty of robbery and be required, pursuant to a mandatory order, to surrender his or her DNA to the state.
Assault with a weapon and assault causing bodily harm, both offences that can be prosecuted by way of summary conviction, are included in this mandatory category. Again, under this legislation, a 12-year-old involved in a consensual schoolyard scuffle in which one of the participants receives a minor injury must be subject to a DNA order upon a finding of guilt. These offences are commonly committed by young persons and in many cases the underlying facts belie the seriousness of the charge.
I compare the triviality of the offences mentioned here with the serious impact on a young person's life, which impact is felt for a very long time. This gives me severe concern.
I find it almost serendipitous that Senator Baker showed up with this decision yesterday.
The Chair: The decision came down on March 17, but Senator Baker drew it to our attention yesterday.
Senator Bryden: Some of us here are concerned that it is possible that the law surrounding DNA is not being enforced strictly in the interests of the privacy of the person. As you said, that DNA gives whoever has access to it access to an individual's privacy to an extent that has never happened in the history of man until the DNA issue came up in 1988 or thereabouts.
The Chair: Have you comments, gentlemen?
Mr. Cory: I have to come back to saying if there is no explanation, it is a matter of very serious concern. I would like to hear the explanation with regard to it.
Mr. Bergman: I was just reading in section 9.1 (1) of the act:
Access to information in the convicted offenders index in relation to a young person who has been found guilty under the Young Offenders Act or under the Youth Criminal Justice Act of a designated offence shall be permanently removed without delay when the record relating to the same offence is required to be destroyed, sealed or transmitted to the National Archivist of Canada under Part 6 of the Youth Criminal Justice Act.
The Chair: The question raised is whether current practice, the way things happen, not necessarily policy, is in full conformity with the act.
Senator Bryden: Unless this person was committing perjury.
The Chair: However, we did agree earlier this morning that I would write to Mr. Yost and Dr. Fourney to ask for their side of the story about those statistics, and if Senator Bryden wishes, I can include in that letter a request that they expand upon their views on retention of DNA samples. Would that be helpful?
Senator Bryden: I do not know that we are as interested in their views as I would be interested in the facts. That is, where are those pieces of bodily substance that this judge is claiming? There are 21,000 of them somewhere, of which he has accounted for 565 or some number like that. I believe that if those are being kept, it is a violation of the law, and so my concern is to get a definitive answer that says, "No, we have none of that here," or "We have three of them here, and here is the reason they are here," or "We have 300,000 of them here and here is the reason." That will not likely happen.
The Chair: I think 300,000 might be pushing it. Senator Bryden, how is this: We will start by writing, as previously agreed. If the answers we receive raise more questions than answers in our mind, we will invite them back to testify before us. I would remind all colleagues that we are planning to visit the National DNA Data Bank in the relatively near future, if all goes according to plan, and we may indeed find that instructive as well.
Senator Bryden: Thank you very much, and also as I said at the beginning, it is pretty unfair that you did not have a chance to look at this either. I do not know how many times we will have a chance to speak to Mr. Cory.
The Chair: I have a sort of a supplementary to Senator Bryden's question, because it is still in the field of young offenders and the Youth Criminal Justice Act.
You said, Mr. Bergman, in your presentation "We" — which I take to mean a consensus of the advisory committee — "continue to hold the view that young offenders, due to their impressionable age, should be subject to a DNA order with discretion only after conviction." That is essentially where this judgment that we have been so caught up in this morning was going.
I take it you are suggesting that the act should be modified to provide for discretion in the case of young criminal offenders?
Mr. Bergman: I believe it does allow for discretion in the case of young offenders. I was just looking at the 16 compulsory offences contained in the act where there is no discretion based on —
The Chair: That is my problem. Often when we legislate providing for judicial discretion, the law also provides some criteria, some of the elements that should be taken into account by the judge in exercising the discretion. If we were to recommend allowing discretion in the case of young offenders for those offences where there now is none, have you any suggestions about what such elements or criteria might be?
Mr. Bergman: Well, for young offenders, I continue to believe that because of the tender age, that discretion should cover all categories — compulsories, primaries and secondaries. I believe the law should state that.
The Chair: That was not quite what I was driving at, though.
Mr. Cory, did you want to comment?
Mr. Cory: At various times, starting with the Juvenile Delinquents Act and going to the Young Offenders Act, there has usually been a preamble to the act taking into account youth, inexperience and circumstances, and those I think would be very helpful and really would set out the conditions, the parameters you are looking for in connection with that very sensitive group — young offenders — and it would be helpful.
The Chair: That was what I was driving at. Would you also tend to think that was appropriate, Mr. Bergman?
Mr. Bergman: Yes.
Senator Wallace: Mr. Bergman, just moving to a little different direction in all of this, it is my understanding that increasingly there are exchanges of databased information between foreign states and international organizations. I would assume that it is becoming more critically significant in each of the countries to make decisions on laying charges and identifying persons.
I also understand there are protocols between reciprocating states that govern that activity, and obviously in that whole process, the reliability of the techniques used in analysis plus the accuracy and reliability of the technologies used would be extremely important. Has your advisory committee examined recently the protocols that exist between reciprocating states? Do you have any thoughts as to whether changes should be made in any of those protocols?
The technology in this area seems to be changing on a daily basis. Do you have thoughts as to how we should be moving forward to keep updated, and has your committee addressed that recently?
Mr. Bergman: We have certainly been briefed on discussions that are ongoing with the G8 countries, who would like to establish an electronic network, I believe. At present, the exchange occurs simply through multilateral assistance treaties with each country. It is not done electronically on a large basis.
Our committee certainly is concerned: we do not believe that all our data should be moved into a central data bank to be searched against all countries. We continue to believe we simply search a profile against our data bank and then we decide as a country whether we are prepared to release the information if we are assured that it will be used for either a criminal investigation or a criminal prosecution. I believe in all the cases where we have established multilateral assistance treaties we, as a country, have agreed that that kind of information would be used for those purposes only.
I do not believe that the G8 agreement is anywhere near complete as yet. Discussions are ongoing, and I think Dr. Fourney and Mr. Bird are attending meetings in England on this issue. Whatever the outcome is, as I said, we do not believe there should be any bulk exchange of DNA information; it should be done on an individual basis that might involve a criminal investigation or a prosecution.
Senator Wallace: That would not be a change from current practice?
Mr. Bergman: Right.
Senator Wallace: It is basically "stay the course"?
Mr. Bergman: That is how our committee feels at the present time.
Senator Dickson: I appreciate the depth of your knowledge. I am new to this committee.
My real interest this morning relates to the missing persons act. Either or both of you can answer. What seems to be the holdup of the provinces in moving forward? Is it associated to cost? It is a very important issue.
Mr. Bergman: It is not only associated to cost; I believe it is jurisdictional as well. It could involve the coroner's service. It involves certainly different police organizations, and some provinces have moved towards their own provincial systems. There does not appear to be a consensus.
I did not sit in on those meetings, but I know that Dr. Fourney met with a group a couple of years ago and even laid out the plans as to how a system could be built and put in place. That was taken back to the provincial attorneys general and a working committee, and we have not really received any reply from that date.
Senator Dickson: Are there any thoughts about following up in the near future?
Mr. Bergman: I will be asking the minister's office for that information at our meeting, which is scheduled for the end of April. I am not sure they will have an answer for us, but we firmly believe there should be a national missing persons index in Canada.
Senator Dickson: I agree with you; there should be.
Senator Milne: On the second round I will be very brief because Senator Bryden raised my concerns about this recent judgment by Justice Cohen.
I would hope, Madam Chair, that perhaps when our future witnesses respond, they could respond as well not only to paragraph 51 of that judgment, but also paragraphs 52 and 53 because paragraph 53 refers to a 2001 earlier judgment on a DNA profile being different. It raises grave concerns, particularly since this seems to give us —
The Chair: I have passed my copy of the judgment to the witnesses. Are you talking about sample retention or yet another issue?
Senator Milne: I can read the thing to you, if you wish.
The Chair: You do not have to. Just give me the two-word reference to the topic.
Senator Milne: The further judgment is by Justice Rosenberg from 2001. It is most apt when it comes to young persons who have very long-term privacy interests. It says that a DNA profile is different, that it is capable of providing the most intimate details of a person because it can show the person's genetic makeup. For example, a DNA sample can be analyzed to determine whether a person carries certain genes that make him or her more susceptible to disease.
At any rate, the fact that the physical examples are never destroyed is very troubling for minors.
Mr. Bergman: If I could comment, the profile itself contains no genetic information that could be used to predict vulnerability to disease.
Senator Milne: I realize that, because they can use these unspecified areas of the DNA.
Mr. Bergman: That is correct. Though the blood sample itself certainly has that vulnerability, it would be illegal to carry out that kind of clinical analysis. The DNA data bank and the labs in Canada do not even carry the kind of kits required to do that kind of analysis, but it is clearly illegal.
Senator Milne: It is presently illegal, but who know what will happen in the future?
Senator Joyal: Mr. Bergman, that very point Senator Milne made was to be my question. When we read Justice Rosenberg at paragraph 53, to me there is a question that stays there. The quote from Mr. Justice Rosenberg is on top of page 12, at the end of the paragraph, where he says that to guard against abuse, it is the policy of the DNA data bank to only use non-coding or junk DNA. In other words, the DNA data bank uses only that part of the DNA that does not predict any medical, physical or mental characteristic.
The point is that this policy or convention is not written into the legislation.
Mr. Bergman: I believe that is correct.
Senator Joyal: I would then infer that we should put that into legislation if this is to meet the policy, the convention and the way of doing it. It would provide additional protection in the context that Senator Milne and Senator Bryden have raised.
Mr. Bergman: Yes, it would. The genetic loci that are being examined are used in many countries, and they were agreed upon through meetings with international laboratories around the world when this process was put in place. Of course, a primary requirement was that they examine pieces of DNA that have no vulnerability to predicting disease, and that has been followed. We believe it is a very basic element. It should probably be in the legislation, but it was never placed into the legislation.
The Chair: You believe it should be?
Mr. Bergman: It would provide extra protection.
The Chair: I remember when Dr. Fourney testified before us, most usefully and helpfully. He said, almost as an aside, that one of his nightmares was that one of these loci would turn out to be a marker for some of this information, and then you have to go through the data bank.
Presumably, not Dr. Fourney but a future director who is perhaps less committed to truth and justice would be terribly tempted to say, "I do not have the budget, the time or the staff to go back and screen all that out." If the law told him to do so, that would be an extra protection.
Mr. Bergman: Yes, it would.
Senator Joyal: Especially in light of further comments by Mr. Justice Rosenberg, who also said that it is not beyond the realm of possibility that in the future, scientists could claim to be able to isolate the genes that make a person more prone to violence.
Mr. Bergman: Eugenics, as they say.
Senator Joyal: Yes. We are very close to eugenics there. I think that with the coming scientific development and refinement, as Mr. Justice Rosenberg mentioned, it would be a safe approach to specify clearly in the legislation the parameters under which the DNA analysis should be conducted.
Mr. Bergman: I agree.
Senator Joyal: As a corollary to the points raised by Senator Bryden, I understand from your presentation Mr. Bergman that the role of the committee as stated in the regulations directs that the committee shall on its own motion, when the committee considers it necessary, or upon request of the commissioner, advise the commissioner on any matter related to the establishment and operations of the National DNA Data Bank.
In other words, if I interpret that mandate of yours, either proprio motu, to quote my former Latin professor or former Justice of the Supreme Court, or at the request of the RCMP Commissioner, you have a responsibility to provide advice on the operation of the data bank.
Mr. Bergman: Yes.
Senator Joyal: In the context of Senator Bryden's question, am I overstretching your responsibility by stating that it falls upon you to ensure that the essential elements of the operation of the data bank — that is, the storage of the DNA data prints and, of course, the destruction thereof — are carried out?
Mr. Bergman: I have not read this judgment, but yes, it should fall within our responsibility. Part of the issue here involves notification to the data bank through the RCMP's criminal history files. In other words, the data bank does not destroy a profile and record until the criminal history file is in and the RCMP, associated with the fingerprint index, advises the data bank that now is the time to remove that record. I believe it is our responsibility as a committee to look into this.
Senator Joyal: It seems fairly important to me, and I will tell you why. As Parliament we are not there on a daily basis. We have an annual report, but we are not there at the various steps of the operation of the data bank. The concern I have stems from the Auditor General's 2007 report, which is not that long ago, which outlined some deficiencies in the operation of the data bank. I have it here in front of me. We will provide it to you after.
It seems to me that if the operation of the data bank, to put it in non-judgmental terms, has not satisfied the Auditor General recently, by which I mean less than a year and a half ago, we have to be able to rely on a body or a group of people within the overall framework of the operation of the legislation to follow up on those matters.
Mr. Bergman: Yes.
Senator Joyal: Since your terms of reference involve the operation of the data bank, my prime source of trust would be with you. I know from your presentation this morning that you meet only two times a year, but you will understand that we have to ask that question of you, because we have to be satisfied in reviewing the legislation that the system works correctly. It is part of our role. We are not there to substitute ourselves for you. You are the expert, you are the trust person, and it is quite obvious from your testimony that you are.
You will understand that we have to know how you perform your duty in relation to the operation of the data bank generally, within the context of the quote that Senator Bryden provided to you, as much as the report of the Auditor General.
Could you inform us how we could evaluate the system in relation to the banks to ensure it meets its objectives?
Mr. Bergman: I believe the review you are talking about by the Auditor General was conducted solely towards the operational side of the RCMP laboratories — in other words, the Vancouver, Regina, and Halifax laboratories that do the analysis of crime scene samples. To my knowledge, they did not comment upon the National DNA Data Bank whatsoever. It was a separate audit of the operational side of the RCMP laboratories.
Senator Joyal: It is part of the operation, in a way, because it indicated that the problem is especially bad in the lab's DNA analysis unit.
Mr. Bergman: That is the analysis unit in one of the regional laboratories. We regard the RCMP laboratories the same as we do the laboratories in Ontario or Quebec. In other words, it is a laboratory that handles case work for police departments in those regions. Those laboratories then submit samples to the Crime Scene Index. Our committee does not involve ourselves at all in the operations of the field laboratories, including Toronto and Montreal.
The Chair: You are not an oversight committee, then? Is that a distinction?
Mr. Bergman: I see ourselves as that for the data bank only. The data bank is a completely separate, unique issue, which serves all across Canada, the RCMP, the police forces in Ontario and Quebec. They utilize their own laboratories to analyze crime scene samples, and then they upload the profiles to the Crime Scene Index in the data bank. The data bank is a separate and distinct service to all police departments in the country.
Mr. Cory: There is even a separate jurisdictional aspect in that those laboratories are provincial and governed primarily by provincial legislation. It is completely separate from the DNA data bank, which is simply the repository of the crime scene samples that are submitted to the National DNA Data Bank.
Senator Joyal: However, on the operation of the bank, to put it in those terms and in that framework, would the statistics that were provided by Senator Bryden in the decision of the court 10 days ago be provided to you regularly so that you can watch and exercise the responsibility of checking on one side the objective of the bank and the obligations that are put on the bank by the actual legislation?
Mr. Bergman: Yes, I can assure you that this issue would have been raised at our next meeting in late April by Mr. Yost or Mr. Bird. Both follow the legislation closely, and it would be raised, and of course our committee would be very interested in finding out exactly what happened and what the practice is. We would find out about it automatically at our next meeting.
Senator Joyal: In other words, if there is something to be changed in the way that the information is provided to you, when especially at first glance it seems there is a discrepancy generally, do you have the capacity to obtain that information and to question that information?
Mr. Bergman: I consider our mandate broad enough to ask for any information within the RCMP with respect to the National DNA Data Bank. I have never encountered a problem with that mandate.
I have a certain degree of confidence that if a decision such as this decision occurs, it would come to our attention quite quickly and it would be on our next agenda, and we would ask questions and try to clarify what occurred and whether the data bank is operating within its legislated mandate and the will of Parliament. It would come to our attention.
Senator Joyal: In performing that review, to whom would you give your conclusions?
Mr. Bergman: To the commissioner. Our minutes go directly to the commissioner. They go as well to the Minister of Public Safety, and the Minister of Justice would be aware of it, after every meeting. It would occur fairly quickly after the meeting.
Senator Joyal: Is there information that you would provide to the commissioner that the commissioner could then table in his annual report to Parliament, or is there information that you would provide to the commissioner that would be "sanitized" or too confidential to be made publicly available to Parliament?
Mr. Bergman: I do not believe that it should be confidential. When we issue our minutes, we try to include in our minutes everything that has occurred, and I have never yet in nine years encountered anything that had to be sent to the commissioner with a privacy restriction associated with it.
Senator Joyal: In other words, you would have no objection to its being part, as such, of the report that the commissioner provides to Parliament on a yearly basis?
Mr. Bergman: It certainly would not concern me. Of course, what he puts in his report is his decision.
Senator Joyal: Thank you very much. I think it helps us, as you well understand, to try to perform our parliamentary review duty over an important element of our system. To quote Mr. Justice Cory, it is always a balancing of how we protect the various players in a way that the objectives of the act are acted upon in the way that you act, in your own capacity as an advisory body, and the way that Parliament performs its duty of reviewing the objectives of the act. That is what we are doing here today, as a matter of fact.
Mr. Bergman: I understand that, sir, yes.
The Chair: I have one question arising out of the exchanges with Senator Campbell.
The RCMP system is not the only data bank storage system in the country. There are provincial ones — for example we already knew that there are Ontario and Quebec systems — and there may be more that we do not know anything about that are not covered by legislation applying to the RCMP data bank.
This is a very broad and vague question because I do not know what the specifics of it might be, but are there problem areas here in terms of consistency for Canadians expecting their rights to be respected? Are there other problems — administrative or technical — either now or looming on a horizon, near or distant? That is a very broad question without much time to answer, but if could you give us a little guidance, I would appreciate it.
Mr. Bergman: There are what I would call small data banks in every laboratory, I believe, that analyze DNA. They would consist of samples that would not be legislatively authorized to be moved into the National DNA Data Bank. For instance, I think I described a discarded sample or a coffee cup with DNA on it. That type of crime scene sample is not eligible to be loaded into the national DNA index because it was not obtained by a warrant process.
However, the local police could utilize that kind of information and ultimately use it to obtain enough information to seek a DNA warrant. The local police cannot upload that kind of information directly into the National DNA Data Bank, so they maintain it on a local basis. Of course our act has no jurisdiction over those provincial issues.
The Chair: Are there any problem areas we should be looking at, conflicts, et cetera? I am very aware that Parliament's jurisdiction is sharply limited, and the jurisdiction of this committee is even more sharply limited. At the same time, are there other areas we should be aware of that would be helpful to us?
Mr. Bergman, you do not, I take it, see problems in this multiplicity of jurisdictions and administrations?
Mr. Bergman: As a committee we have not really examined those data banks in any depth because they do not come under our jurisdiction.
There is an interesting case I might reference. In 2002, an individual in Alberta murdered a lady, a restaurateur—sexually assaulted and murdered her with a knife. There was very little evidence at the scene, but there were semen samples from which DNA could be taken. There were some witnesses, but their statements were not that clear.
The police went out to seek volunteers from within the community, and several people did volunteer their DNA. The lab analyzed those, and they reported that two of the samples produced a result that indicated that a relative of one of those individuals might be involved. Ultimately it turned out to be a son of one of the volunteers, who was then convicted of the murder.
That is a case that could not be handled on a national level but was handled locally, and almost looks like familial searching. In fact, the sample was not generated from the Convicted Offenders Index; they were volunteer samples.
The Chair: It is still a familial search.
Mr. Cory: However, it was purely voluntary. This was the result of informed consent, so it was in a different sort of category.
Senator Milne: This comes back to a very basic question, really. Who owns your DNA? Do you own it yourself or can someone else take possession of it and therefore use it for various and assorted different purposes somewhere down the road?
Mr. Bergman: Certainly the state has a responsibility to protect that privacy when it uses DNA. However, as you know, all sorts of laboratories around the world now offer all sorts of services to people to examine their own DNA. That is a voluntary basis, but I really would not want my DNA being circulated to private laboratories. It is occurring in many countries, and the services are on the Internet.
Mr. Cory: It would be interesting to see if we could get a loan, in these desperate times, on the basis of our DNA. That might ease the economic crunch.
The Chair: If you have the gene for financial prudence and probity.
Mr. Bergman and Mr. Cory, thank you very much. This has been an extremely interesting and very helpful session to us as we continue our work. It is possible that we may write to you for further helpful responses as we continue down the complicated path of this study, but for now we just thank you enormously for being here.
Mr. Bergman: Thank you. It has been a pleasure.
The Chair: This meeting is adjourned.
(The committee adjourned.)