Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence for May 6, 2009
OTTAWA, Wednesday, May 6, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:08 p.m. to study the provisions and operation of the DNA Identification Act (S.C. 1998, c. 37).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of the provisions and operation of the DNA Identification Act.
We are delighted to have with us two very interesting witnesses to begin the meeting.
[English]
From the Canadian Association of Elizabeth Fry Societies, we have Ms. Kim Pate, Executive Director; and from The John Howard Society of Canada, we have Mr. Craig Jones, who is also Executive Director. We welcome you both.
Craig Jones, Executive Director, The John Howard Society of Canada: I will defer to Ms. Pate.
Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies: Good afternoon, it is a pleasure to be here. Thank you very much for the invitation. I also bring regrets from my president, Lucie Joncas, who is in the midst of a murder trial. Unfortunately, she was not able to join us.
As many of you are aware, we are also in the midst of National Elizabeth Fry Week, and I wanted to say happy Elizabeth Fry Week. This is the week we choose every year to draw attention to the number of victimized, marginalized, criminalized, imprisoned and otherwise institutionalized women and girls throughout the country. It is to also focus on the need to really look at alternatives within the community to prevent women from being in those situations, and to also address their needs when they re-enter the community after being institutionalized, particularly in prisons.
We always do it this week — the week before Mother's Day — to draw attention to the number of women in prison who are mothers, many the sole supporters of their families before they go to prison. We also do it to draw to the fact mothers are sentenced to separation and imprisonment, and so are the children because often many of them end up in child welfare. One third of the federally sentenced female population is Aboriginal. That means, increasingly, the children are also sentenced to institutionalization as a result, so we try to draw attention to that. Therefore, thank you very much for inviting us today.
I know I am not here to speak about Elizabeth Fry Week; I am here to speak about the review and comment on the provisions of the DNA Identification Act.
As you may be aware, when the first iteration of this bill was introduced, many of the national women's groups and organizations took issue with the introduction of the bill at all. Bearing that in mind, my comments will obviously flow from the fact that we do have that bill, and it is a bill that really marks a significant intrusion into the privacy, human rights and Charter interests of many Canadians. Therefore, it requires the utmost insurance that we are protecting those rights as we look at the details of the bill and as we look at any particular attempts to open up the bill.
As the Supreme Court of Canada has reiterated, these intrusions require constitutional protection and potentially pose some of the most significant and fundamental challenges to our country as a democratic state, where they are not monitored and appropriately kept in check.
The collection and retention of DNA information should adhere to the highest possible standards of the Charter, human rights legislation and privacy protections. As we know, these encroachments on individual rights must be shown to be necessary in order to meet a clear and provable risk to public safety and security in the context of our free and democratic society. In addition, any DNA-related information that is gathered must be managed in a manner that ensures that the intrusion into such rights never exceeds the established security risk or need.
As the Supreme Court of Canada has recognized, that protection does require that we ensure that the protections that are in place be also reflected in the manner in which the legislation is implemented.
In the year since the DNA Identification Act was passed, the scope of the scheme has been steadily expanded, starting with the addition of the so-called anti-terrorist provisions and continuing with other offence categories, including some that will potentially be before the house in the coming year.
Given our work with women who are victimized, current developments underscore our ongoing concerns that the focus on DNA and crimes involving serious, violent sexual attacks feeds the notion that identity rather than consent is the primary impediment to individuals being held criminally responsible. It also assists in widening the category of offences, which has enhanced rather than quieted our concerns. Given that we know that women are the fastest-growing prison population, the chances of this information potentially impacting those who are most likely to be vulnerable, particularly in co-accused situations and situations where women's DNA may be evident, or may be part of an incident — they may not be the primary actors — may, in fact, lead to increased criminalization, as well.
We are concerned and oppose the notions of expanding the act to allow the taking of DNA on arrest or the taking of DNA of familial members. In addition to threatening the presumption of innocence when taking DNA on arrest, we feel it has a disproportionate impact on the privacy, civil and human rights of, particularly, those who are of ethnic and racial minorities. As I have already mentioned, we know the arrest rate for these groups are disproportionately higher than for other Canadians and that their incarceration rate is also higher. For instance, as a mentioned earlier, the number of Aboriginal women in the prison population far outstrips their representation in the Canadian population. It is almost double that of the already disproportionate and higher representation of Aboriginal men and indigenous men in the federal jail population.
We share the concern of Office the Privacy Commissioner of Canada with respect to sharing of information from the DNA data bank with foreign jurisdictions. We also caution against the routine comparing of Canadian DNA data bank profiles with international databases. Similarly, we would not support the linking of the Canadian database to a central system that would allow foreign states to routinely carry out searches.
To conclude, our organization encourages you to recommend the retention and, if possible, the restriction of the nature of the instances when the taking of DNA samples is permitted; the continued prohibition on the taking of samples upon arrest; the strengthening of safeguards against misuse of the National DNA Data Bank by, at the very least, separating genetic and personal data, prohibiting unauthorized persons from accessing the data bank, judicial oversight and correction of those who attempt to violate those provisions; the development of an independent oversight monitoring system in order to increase accountability and Charter protection at all levels.
Mr. Jones: Thank you, and I am honoured to be asked to speak today before the Standing Senate Committee on Legal and Constitutional Affairs on this occasion to study the revisions and operations of the DNA Identification Act.
Having said that, I think, in the future when I appear on these panels with Ms. Pate, I will try to speak first as Ms. Pate usually makes my modest comments appear even more modest; it is not a favourable contrast. These are modest comments, but I do want to go on the historical record with a couple concerns.
I will not address myself to the science because better people are at your disposal, nor will I address myself to the law as that, too, is beyond my expertise. Instead, I will try to put on the historical record some observations that derive from two areas where I am slightly more conversant: politics and the history of science.
When one draws back from the «gee-whiz» science, I think the most interesting aspect about this is the intersection between politics and science. I hope to bring to this discussion some insights from the history of science and technology that may illuminate aspects of your deliberations on the DNA Identification Act, or at least clarify some anxieties that may be forming in your minds as you move through these proceedings.
Let me start with the history of science and then segue to the political implications. I read with interest the testimony of Ronald M. Fourney, Director of National Services and Research with the Royal Canadian Mounted Police, in his appearance before this committee on March 25 of this year. I was frankly amazed and astonished; rather the way I felt when I first watched Star Trek in the mid-1960s. He called DNA the perfect tool in forensic science and he added that it was as powerful in exonerating the innocent as convicting the guilty. Who could doubt the social benefits of such a tool?
However, of course, that is only part of the story. What is truly remarkable about the current stage of digital technology lies in the ever-growing capacity to blend databases and to do what is called «social sorting.»
This is a sociological term that refers to the capacity to verify identity but also to assess risk and assign worth. It is the kind of thing that insurance companies strive to perfect because they, for business reasons, cannot have enough information about what kinds of risks people represent.
This technology assumes many different forms and has exploded in growth since 9/11, aided and abetted by improvements in microprocessors and related digital technologies.
I happen to run my dog with a scientist at Queen's University, and he talked about the explosion of graduate students funded after 9/11 to do exactly this kind of biometric research in the departments around his. It is that explosion in growth that should concern us because, at such times, the technology tends to run ahead of our capacity as comparatively slow-motion deliberators to envision the full range of potential implications for the well-being of our democracy, protection of Charter and privacy rights and related considerations.
It is as if we humans cannot deliberate faster than 33 and a third revolutions per minute, while digital technology is literally advancing at the speed of light.
In the history of science, there have been other times when the instrumentalities of science have run ahead of our ability ethically to understand what we were doing. It is quite easy to envision a generation of DNA mapping that will code for criminality — or at least characteristics that are correlated with criminality — and what a boon that would be to law enforcement.
One thinks immediately of how many crimes have been solved through fingerprints, but one also reflects on the number of people misidentified by eyewitnesses. Again, I am not invoking bad behaviour or ill will, merely the intrusion of human fallibility, which no technology can ever eradicate.
However, DNA mapping that is able to code for criminality is putting the cart well before the horse. Humans are more than their genetic heritage of course; they are amalgams of genes and environment. As I used to say, when I was working in health policy, nature loads the gun, but environment pulls the trigger.
Senator Bryden, addressing Mr. Fourney on March 25, raised the requirement that new technology must respect our Charter of Rights, Constitution, privacy and individuality. Senator Bryden was expressing concern about the creation of what are called DNA dragnets, which DNA identification technology clearly enables. After all, the greater the database, the greater the chance of a positive hit on the right person. The police will always be able to make a persuasive argument for growing the capability of their technology.
However, technology without limits is the tyranny of instrumental reasoning — in this case, reasoning by the people who are supposed to be protecting us. In giving voice to this anxiety, Senator Bryden was expressing an ancient apprehension: Who guards us from the guardians?
Again, I do not mean to impugn the people who operate this technology in the public good; rather, what I wish to draw attention to is that there arises a tendency among users of technology to think that if we can do something because the technology permits it, then we should. Not because they are mendacious, but because they are thinking instrumentally and leaving the deliberation on "the greater good" to others.
Here is an example from the history of urban design that connects to the political considerations with which I want to conclude. Robert Moses was the master builder of mid-20th-century New York City and is one of the most polarizing figures in the history of urban planning in the United States. Although he never held elected office, Moses was arguably the most powerful person in New York state government from the 1930s to roughly the 1950s. He changed shorelines, built roadways in the sky and transformed neighbourhoods forever. His decisions favouring highways over public transit influenced a generation of engineers, architects and urban planners who spread his philosophies across the continent.
His arrival on the New York scene — post-World War I — corresponded with the rise of mass production of automobiles and their presence in the urban environment. His designs took full advantage of the multiple technological and engineering innovations that were a product of World War I, particularly steel and concrete construction.
We can debate the merits of his work, but we cannot dispute the impact of his vision on how cities have evolved since the end of World War II. Had we known, at the outset of the automobile age, how significant would be the effect of Robert Moses' design choices on the lived space we called cities, we might have made other choices; choices that would have de-emphasized the impact of the automobile and the environmental and human consequences that have come with it.
The technology that transformed New York, aided and abetted by instrumental reasoning, ran ahead of the deliberation on what the city of the future ought to feature for the people who lived in it. Not only could the thinkers of the day not see clearly what the implications of the automobile age would be — certainly the science of global warming was nowhere on the horizon — but it would be many years before the political implications of this particular vision of urban design became apparent.
For, implicit in Robert Moses' use of design and technology, we can see clearly in retrospect a highly developed class consciousness that used the science of urban design to create zones of differential access to public space, beaches, parks, et cetera. I do not want to imply that keeping working people off the beaches and out of the nice neighbourhoods was Moses' implicit intention, but it was a political consequence of how he deployed the technology of his day. He did so largely without oversight or deliberation on how his technological decisions would affect the people he purportedly served.
That is why it is so imperative that you, senators, undertake this deliberation on the DNA Identification Act. The system of checks and balances that preserves a democracy needs constantly to be updated, fine-tuned and perfected. In particular, democracy needs to be protected from the persistent enlargement of technological capability, which is often little more than a consequence of decent people trying to do their job.
I will conclude with five brief recommendations.
First, I encourage you to require demonstrable evidence to show how enlarging the scope of the DNA Identification Act will help us achieve a safer and more just society. I can safely say that there will always be pressure on you to expand the list of designated offences; if not this year, then next year or the year after.
Second, I encourage you, on behalf of all Canadians, to uphold the original rationale of the data bank. It was intended to apply only to designated offences that consist of a violent or sexual offence that might involve leaving DNA at a crime scene.
Third, DNA data extracted from a biological sample can provide insights into an individual's familial connections, ethnicity, ancestry, physical attributes, genetic mutations and medical predispositions. As such, DNA data represents the intersection of both physical privacy and informational privacy interests. As the technology matures, it will shed light on increasing numbers of genetic characteristics, but it is not clear — or at least we should require that a case be made — that such technological imperatives will contribute to a better democracy and a safer society.
Fourth, I encourage you, on behalf of all Canadians, to recommend that there be tight control and oversight over the sharing of DNA information with foreign states.
Fifth, I encourage you to recommend counter-measures to reinforce rights that prevent government intrusion into private life. Where this technology is concerned, there can never be sufficient accountability for the influx of information and the way it is used.
Thank you, senators.
[Translation]
Senator Nolin: Thank you, Madam Chair, and thank you to our two witnesses who have travelled to be here today. It is always a pleasure to have representatives from your respective organizations help the committee with its deliberations and research.
Mr. Jones, from your opening remarks and comments, you seem to want us to improve the relationship between Parliament and those charged with administering the data bank.
When the Senate amended the act to create the data bank more than ten years ago, we introduced measures to regularly review the operation of the act. Do you think those regulations should be changed? Clearly, they should not be lessened. Do you have any suggestions?
[English]
Mr. Jones: Thank you for the question, senator. I must say that I do not know. I would have to think about that. Maybe this is the type of technology that calls for oversight by an officer independent of Parliament who could report to Parliament; someone with the necessary expertise and legal training. We got the call for this committee just a short time ago, so I would like to deliberate on that and get back to you.
Senator Nolin: Of course. I am sure the chair would appreciate it if you want to expand your answers in writing.
The Chair: Indeed, and I ask you now to do that for us. It would be very helpful.
Senator Nolin: If I understand correctly, we are talking about technology, and it is technology in the making. Since we last studied this 10 years ago, the technology has evolved rapidly. Do you think we should have some type of special technician who would work for Parliament to examine and report periodically on the evolution of these sciences?
Mr. Jones: Someone perhaps who is in a position to deliberate on the democratic implications of the evolution of this technology and can keep parliamentarians and senators informed of what the technology may mean for the nature of our democracy.
Senator Nolin: The Privacy Commissioner can hire technicians or experts who understand these technologies and report to Parliament. Do you see a solution or answer to your concerns there?
Mr. Jones: I read a few speeches by the Privacy Commissioner in preparation for this, and I found them quite helpful in the preparation of my own notes. Perhaps the Privacy Commissioner is a sufficient office for this task. I know parliamentarians already have a tremendous amount on their work day, but this technology is so pervasive and evolving so quickly that it is hard to imagine that parliamentarians should not know a great deal more about it. I do not necessarily know what the best instrument to bring that about is. The Privacy Commissioner is in place, and maybe there is a way to enhance that office or to add a couple of people to that office who specialize in this technology. I would be happy to deliberate on that and get back to you.
Ms. Pate: The idea of a technician is a useful suggestion as well, perhaps attached to the Privacy Commissioner.
We have also suggested something that would trigger judicial oversight. For instance, if you saw fit to suggest that we could share DNA with foreign groups, whether our organization or others agree with it, presumably that could be something that could trigger a judicial review so that the evidence presented by either side as to why that information needs to be provided could be tested before a court and then judged by someone who does not necessarily have an interest.
My only concern about a scientist necessarily being involved is, as we have seen with areas such as taser research, if you have the very people who are expert in the area — no offence to any of them and no indication that any of them would necessarily do this — if they have an interest in the area, we know that in some sciences that means they are also often relying on funding from those sources. Our organization would be looking at a process that would involve those who we trust as the arbiters being able to make judgments based on the presentation of evidence on more than one side of an issue.
Senator Nolin: On a different aspect of the operation of the data bank, would you support — I think I know the answer — a principle by which the person, the owner of the DNA, would be informed if the data bank were to transfer information related to his or her DNA identification to a third party, whether foreign or domestic?
Ms. Pate: Presumably that should be done at any rate at this stage. Notification procedures are in place. I do know there have been incredible pressures, even in situations where people do not have to provide DNA. For instance, just ask the Native Women's Association of Canada about the number of Aboriginal women who have been asked to provide DNA.
Senator Nolin: On conviction or arrest?
Ms. Pate: To try to assist with arrest in the context where DNA has been linked to other issues. We know that many of the missing or murdered Aboriginal women ended up criminalized, which is part of what led to their marginalization, contributed to their victimization and left them sometimes as pariahs of society; real risks exists.
At the very least, that would be a requirement. There should be notification, but we would be adverse to a starting point of that type of sharing of information occurring. Senators are likely aware of some of the more infamous examples of where the systems had the DNA and did not use it. The Bernardo situation was one of them. The DNA was available before we knew anyone was actually murdered, yet it was not used because of presumptions about what the perpetrator might look like.
Harkening bark to the comments of Mr. Jones, some of the issues that define how these provisions get implemented are very much defined by how the entire system is dealt with and the biases that are part and parcel of that system. That is part of the reason it surprised many people that the national women's groups were not in support of the establishment of this data bank. The examples mostly used were situations of violence against women and children. In reality, that is not usually what interferes.
The Chair: On that point, I really do not want to take up much time because we are time-limited with you. However, for clarification, it is our understanding that the federal DNA system, the DNA data bank system that we are authorized to inquire into, has very strict rules and would not permit the gathering of broad-scale samples of DNA just for purposes of elimination. I have to assume that it would be provincial police forces or data bank centres that would be doing the collection you are talking about.
Ms. Pate: That is correct, around investigations such as the Pickton investigations and that sort of thing.
The Chair: I am not saying that these are not important cases. We are just looking at a matter of jurisdiction.
[Translation]
Senator Rivest: I have a question for Ms. Pate. I share your concern. It is more effective to tackle crime with social education measures than with Criminal Code amendments aimed at strengthening sentences or the use of investigative techniques such as DNA. In relation to your presentation, could you tell us exactly how strengthening or broadening a technique such as DNA would directly affect the most vulnerable criminal groups that you mentioned, as compared with other criminal groups?
[English]
Ms. Pate: I think of situations where DNA is collected. An indigenous woman I know had been doing very well for about three or four years, and then there was an investigation into a fairly serious house-breaking incident that involved some violence. A cigarette was apparently found with her DNA on it. Everyone who knew her agreed that she has been doing well and seemed to have moved her life along. This was an old case for which she had provided DNA for one of the reasons I mentioned earlier in terms of assisting others. Ostensibly, she was told that that DNA was found on a cigarette at this house breaking. She said that she would have been involved in her crime cycle at that time, so it very well could have been. She was drug addicted; she had not dealt yet with a history of sexual abuse, residential schools and that sort of thing, so she pled guilty. In that context, she ended up back in prison, where if it had been challenged or there had been a trial, who knows whether she would have ended up in prison. She was so used to a system where she had no choice about what the outcome would be, no belief in being innocent until proven guilty and no belief she would have been given a fair shake. Even at sentencing, had she been offered a pre-sentencing report, she might not have ended up with a prison sentence. She had no expectation other than that of the system, and therefore did not exercise her rights. One might argue that is her responsibility. I would argue it is the responsibility of all of us.
I do not have many examples, mercifully. Our concern would be that if we see an expansion of this sort, there may well be those sorts of cases because in our indigenous population, many people plead guilty right away. The younger they came into the system, the less faith they have in the system to protect their rights and the more likely they are to plead guilty. That is especially true of our indigenous population.
If you look at how many of our Aboriginal prisoners have pleaded guilty, knowing sometimes that they might have had a challenge but also knowing that would mean they might spend months or years in pretrial custody, and given some of the changes that are being proposed there, I would expect we will see increased numbers pleading guilty as well.
I am trying not to be doom and gloom on this, but the reality is that there is a reason we have those protections. However, the protections assume that people will exercise their rights. Many of us who work in the system recognize that that is not necessarily a safe assumption to make, that everyone will exercise their rights or that all of those involved in the system have the time. I am not suggesting there is mala fides involved, but I would suggest not all have the time to check that rights have been respected.
In the case I mentioned earlier, the Bernardo case, when presumptions are made about the individual that do not trigger a desire to make those investigations, we see the opposite is true. In fact, presumptions operate in favour of someone you might very well want to be holding accountable very quickly.
Senator Milne: As a remark to the witnesses, you do realize that it was because of this committee putting in the fact that there had to be an oversight body over the National DNA Data Bank that it actually happened. The fact that former Supreme Court Chief Justice Peter Cory is on that oversight board gives me a certain amount of comfort, I must say.
When we were out touring the National DNA Data Bank a week ago, we heard about the destruction of DNA samples. It appears, as has been found by courts, that DNA samples are not destroyed. What is destroyed, we were told quite clearly — particularly when they are erasing the records of young offenders — is all possible connection between the DNA sample, the genetic profile, and the personal information about the individual. It is completely severed.
We were told that by the gentleman sitting against the wall there very authoritatively. Then, almost immediately, we heard from the people in the DNA bank themselves, who were in charge of the destruction, saying that they had lost some of the records and had to work hard to put them back together again. I thought, oh my heavens; on one hand we are being told the connection is completely severed and almost immediately we were told it could possibly be put back together again. I have grave concerns about that. I am sure we will get an answer to some of those concerns.
From what you are saying here, I understand you do not want the National DNA Data Bank — or anything in the future that they might be able to do — to be expanded? You want it to stay the way it is, is that right?
Ms. Pate: Yes, that is correct. Thank you for pointing out the Senate's role in this. I am sorry we were remiss in not thanking the Senate for putting in those oversight functions. Sometimes when we are trying to think of what to say, we do not say the obvious. We do think that is important, and this review is an important process as well.
Senator Milne: As more and more can be found out through DNA with the technology.
Ms. Pate: I am a techno twit. My students at Ottawa University law school will tell you that I have the least technology of all of us in the classroom. However, I do know I have seen things retrieved from spaces I did not know even existed. I leave that to those who know far more about how to retrieve technology than I do, because I do not know the answer to that.
It certainly is a fear; and if it is a paranoid fear, I will live with that paranoid fear that anything that is erased may also be retrieved again, particularly in this technological and digital age. Many things get retrieved that I think have been lost, and I wish were lost sometimes, but that is a whole other point.
Senator Milne: Mr. Jones, in your fifth recommendation, you talked about encouraging us to recommend countermeasures to reinforce rights. In reply to Senator Nolin, you said that you would be prepared to look into this and give us a list. Are you prepared to give us countermeasures that you would like us to fish out of thin air right now?
Mr. Jones: No, I am sorry. I have not had the opportunity to deliberate sufficiently on this.
I want to echo Ms. Pate's observations that we appreciate the Senate's role in this. This is the chamber of sober second thought. I am urging that we need to fully grasp the implications of that which we cannot know because it is invisible to us at this time. When it comes to digital technology, I think no ground is more likely to move ahead outside of our ability to understand its implications. I will get back to you on your question.
Senator Milne: Thank you. We were assured when we were out there that the only parts of the genome that they are using are highly mutable and are not connected with any known characteristics of the person. They are using markers that cannot be connected with blue eyes or brown hair or anything else.
They told us — if it is any consolation to you — that they live in dread of the fact that maybe at some point one of these little markers they are using — these specific 12 markers I believe — will be connected with some inheritable trait. At that point, they will immediately cease using that.
Mr. Jones: Did they raise for you the possibility that some 13-year-old in his bedroom in Northern Manitoba will hack into it from his home computer? Did that consideration come up?
Senator Milne: They say that the personal information and the genetic information is so widely separated and well coded that it cannot be put together, except by the police.
Mr. Jones: I think the Pentagon would say the same thing.
The Chair: In fairness, what we have been told is that what is stored in the data bank is not useful for any other purpose than simple identity. The parallel that I — who is an even greater techno twit — tried out with Dr. Fourney was the equivalent of a social insurance number, which is unique to the person who has it but tells you nothing about that person.
I checked with him and he sort of hesitated. He said that, all right, for a layperson that was okay as an illustration of what he was talking about. However, it was very clear to us that the operation of the data bank, as it is now conceived, is designed not to store the type of information that you and we are all so concerned about. I would not want to leave you with the idea that we are not aware of the very serious risks that are involved in this.
Senator Joyal: I want to come back to the point raised by Senator Nolin, which is essentially, in my opinion, who polices the police? When we review the DNA Identification Act, various safeguards are in the system that we might want to put into place and ensure they are still there.
The chair has just mentioned one: the kind of information that is in the bank. We might want to lock the bank with respect to that information. Then there is monitoring of the system generally through an external body that is outside of those who use it, so there is an objective management capacity over the neutrality of the use. Also, there is the destruction of the samples when they are no longer needed.
As much as I support the view that the banks should not include information that could allow the spread of the capacity to identify the genetics of a person and tempt the government, in general, to use it on a broader scale for health reasons or any sort of reasons of good public policy objectives that one may think of, one of the key elements of all this is the third party capacity to monitor the system.
I wonder if the advisory committee that we have put into place has a mandate that is sufficient or effective enough to monitor the data bank as much as we are increasing the number of designated offences. Also, in as much as you quoted Dr. Fourney, those who play with that technology might be tempted to push the limit a little more in order to be more effective; that is, to catch the bad guy as soon as possible.
If the nature of the system bears a risk of slipping, should we not be more concerned about the body that we entrust with the capacity to police the police?
Mr. Jones: You have expressed my anxieties very precisely. That is exactly what I am concerned about. As I said, I do not know what the best instrumentalities are to protect us from the police. However, I am very glad to see that concern is present around this table. It should be in the mind of every parliamentarian and everyone who contemplates the extraordinary capacity of digital technology. It is hard to overstate the capacity that digital technology, as opposed to analog technology, has brought to the instrumentalities we are talking about here today. There is literally no limit to what digital technology is able to do. The limits are within us to contemplate what they mean for our own democratic well-being.
Senator Joyal: I believe you will understand that our concern stems from a decision in the court about the percentage of DNA samples involving youth that were supposed to be destroyed but were not.
It raises the question of who should have been monitoring that destruction. Who would have the responsibility to provide for those cases where the obligation to destroy exists, and who monitors that, at the end of the day, the destruction has happened? To me, that is a very good example of the monitoring capacity that, somewhere, must exercise its follow-up.
Mr. Jones: Furthermore, I do not know this as a matter of technology, but if the physical sample is destroyed, does that imply that the digital information derived from that sample is also destroyed? As we know, digital information is very easy to recover. I put that question forward as a layperson because I do not know the answer.
My understanding is that they are two separate phenomena, if you will: The physical sample, whatever it is, and the information that is encoded from that sample in digital form. Perhaps the other gentleman can speak to that later on.
Senator Joyal: In your experience with The John Howard Society of Canada, are there not other aspects of the use or the potentiality of DNA information with which we should be concerned? Are there other issues with the people serving time and their consciousness about what they are being exposed to with DNA and how concerned they should be with that?
Mr. Jones: Yes, I would think so. The question by Senator Nolin, I believe, was about whether if someone's DNA is transferred to a third party, that person should be informed. In principle, I think the answer is «yes» but, in our society, there are people who would not understand the nature of that request. They do not have the intellectual capacity, or they might have an organic brain disorder.
The majority of our client population comes from lower socio-economic situations, and they are often illiterate and badly educated. You could put the transference of DNA into plain language, of course, but they would not necessarily understand what you are saying.
The quality of the informed consent would be compromised, I would think. That is another layer of complication.
Senator Nolin: I am not suggesting we seek the consent of the person — just the information. That is another step.
Mr. Jones: Fair enough. However, my point stands.
Ms. Pate: In the last few years, when every person serving a life sentence was notified that their DNA would be taken, the paranoia that evolved from everyone was shocking. The parole officers agreed it was silly to be taking the DNA of these people. It created such a problem.
Women I know who had not been in therapy for five years were going back to therapy because they thought everyone would be coming everyday, checking them and trying to take their blood. These were not women who had particular mental health disorders, but they certainly developed incredible issues. Some women were not leaving their house for months afterwards because they thought that if they went somewhere and left their DNA, someone might come along and commit a crime. The level of paranoia was shocking to me, yet it was real for them.
These were not people who anyone had any real concerns about what they were doing. They had served their sentences; one woman had been out for 33 years. These were not people for whom there was any public policy interest in having their DNA. What was the purpose of the expense of getting their DNA and the monitoring of it?
That is perhaps less a concern for this body, but it is certainly a concern when talking about what the public policy interest is and how it serves the Canadian public to be going through that expense with such a population. Yes, they are serving life sentences because, at one time, they were convicted of a serious offense, but that time was 50 years previous, as in one case. What public interest does that serve?
No discretion was used to decide, yes, these are individuals we think may still be involved in activity, which would provide some potentially legitimate reasons for obtaining samples versus taking the entire population, holus-bolus.
Senator Joyal: When you were talking about the people you are serving and helping through the legal and carceral system, it seems to me the responsibility of the advisory committee cannot meet all the objectives we have in mind — when I say «we,» I mean us as a society. If the committee meets only two or three times a year, how can they be positioned to meet on a continuous basis? In other words, a routine of control that would allow cases such as the one you described — as well as the other one with the youth or the expansion of the data banks, and so on — to be done in the context of respect of the Charter of Rights and Freedoms, human rights and the privacy of people.
We have reached a level whereby we have to question ourselves on that level of monitoring. Even though I fully respect the persons who serve on the advisory committee and it was a suggestion from this group, I am not convinced at this point in time that we can leave the system as it is now and be well served.
Ms. Pate: With respect, we can trust that body to look at the big issues of broad-based legislative reform and policy reform. The reason we are recommending the ability to trigger a referral for judicial oversight is because of the one example I gave.
We actually had a group of women — and then some men as well who wanted to join in — who were interested in looking at a case to challenge those provisions and to say that in this context, that would be unfair.
The Court Challenges Program of Canada was cancelled partway through that and Legal Aid would not pick it up as a test case. The case evaporated, literally, because these are not people who have much money and can afford to take a challenge.
As I said, not only do people not know when they can exercise their rights sometimes, the ability to exercise those rights is increasingly elusive for the individuals we are talking about who potentially experience some of the greatest human rights and Charter abuses.
Senator Baker: I suppose you are saying that it is very costly for an accused to run Charter arguments through the courts, and it becomes even costlier when justice lawyers demand costs. You mentioned the numbers who plead guilty when they are not guilty. I presume you are referencing as well to plea bargaining that encourages that activity.
Ms. Pate: Yes, I was speaking to plea bargaining. I am not saying necessarily people are not guilty, but further examination done on the number of Aboriginal people serving long sentences has revealed that, in fact, likely, had there been a trial, they would not have been convicted of the offence to which they pleaded guilty. They may have been convicted of a lesser offence, but in that context that means something significant when we talk about sentencing. Obviously, what a person pleads guilty to impacts what the sentence will be.
Senator Baker: Alternatively, they could be innocent and plead guilty.
Ms. Pate: Yes.
Senator Baker: If you plead guilty, it substantially reduces your sentence on conviction.
Ms. Pate: Yes.
Senator Angus: Not always, but as a general rule.
Senator Baker: Mr. Jones, you are suggesting we should be returning to the original intent of this legislation, which was that DNA samples would be taken in the cases of violent crimes and sexual assaults. Do you believe that the last two bills we have enacted in Parliament should never have happened and have unnecessarily expanded the offences?
Mr. Jones: You have caught me on a point of ignorance here, senator.
Senator Baker: That is okay. We substantially increased the numbers of offences in our last two bills that were passed — under the gun by government.
As I understand, you are suggesting that we go back to the original intent of the legislation.
Mr. Jones: Presumably, an argument for expanding the ambit of this technology will always exist, as will an argument for expanding the number of offences. My suggestion to you is to say that it is very important that we are always aware of that which we cannot be aware of now. We create these Frankenstein monsters and send them out into the world, largely ignorant of what — 10, 15, 20 years from now — may come back on us. It is a call for intensive, thoughtful, informed deliberation.
Senator Baker: Finally, I have a question concerning the use of the familial information you referenced in your address because it is on my mind, as a result of the intervention of Senator Angus a moment ago.
In sentencing proceedings now — I am sure you have noticed this in looking at the cases — a guilty plea substantially affects the period of time that someone is incarcerated upon conviction.
The familial reference that you made is very important because we have heard evidence that, as the chair pointed out, provincial jurisdictions outside of the DNA act are using — and have used before this committee — examples of familial searching, which you caution against because you can get false positives, false negatives and so on.
From your knowledge of it, the familial information that is obtained — in other words, where the evidence comes back that we are looking for a certain group of people within a certain classification, and we have seen the examples given — is the DNA samples of all of those family members or relatives in the community. Is that familial evidence one of the grounds used in substantiating a warrant necessary to take the DNA sample?
In other words, is the familial evidence used as a grounds by the police to legally obtain the DNA sample if someone does not consent to give the sample?
Ms. Pate: I do not know the answer to that question.
Mr. Jones: I do not know either.
The Chair: Thank you. I know that Senator Milne has been yearning to put a supplementary question, but I will ask her to give it to me in writing, and I will put it to the witnesses who have already agreed to respond on another matter in writing.
Senator Milne: I will put it to them, and they can respond in writing.
The Chair: Okay.
Senator Milne: What would you think of the use of familial DNA to find or identify missing persons?
The Chair: I thank you so much. You have been very thoughtful and helpful to us in our reflections. I do apologize for the tight time. Life is what it is, but you have been extremely helpful, and we are grateful.
We have the great pleasure of welcoming now Dr. Martin Somerville, President of the Canadian College of Medical Geneticists. We are very glad to have you with us, Dr. Somerville.
Martin Somerville, President, Canadian College of Medical Geneticists: Thank you very much for the invitation to come here and present the college's view on the provisions and operation of the DNA Identification Act.
By way of introduction, the Canadian College of Medical Geneticists, CCMG, is the accreditation body for clinical and laboratory geneticists and genetic centres in Canada. The mission of the CCMG is to establish and maintain high-quality professional and ethical standards of medical genetic services in Canada and to help ensure that the highest quality of service is delivered to the Canadian public.
The CCMG is not a government agency, but it does inform governments and the public about the importance of medical genetics in the Canadian health care system.
The CCMG sets training and certification standards for clinical geneticists and laboratory directors and provides a national accreditation program for medical genetics training sites, including training for both clinical and laboratory-based genetic services.
The CCMG has also developed policy statements and guidelines related to various aspects of genetic testing that may be relevant to this committee, including Guidelines for DNA Banking and Guidelines for Retention and Maintenance of Clinical Genetics Records. The Canadian College of Medical Geneticists currently has 264 members across Canada and around the world.
The issues that most concern the CCMG with respect to the DNA Identification Act are those related to the nature of the DNA information that is stored and the privacy of genetic information for individuals and their family members.
The information that is obtained from the analysis of the 13 DNA markers used for identification purposes can have direct medical relevance. There are numerous claims that these regions are anonymous and, other than gender, do not provide specific medical or physical information about the donor, but the use of these markers can, in fact, detect the presence of changes in the copy number of very large segments of DNA. In other words, it is not designed to do this, but it can do it by circumstance. It is not a very sensitive way of getting medical information, but it can. The list of conditions that this type of profiling can detect includes, but is not limited to, any difference in the number of sex chromosomes as well as Down syndrome or what is commonly known as trisomy 21. DNA profiling will very effectively detect that.
No DNA information is truly anonymous, since any portion of the DNA has potential to reveal personal details about an individual. It is only since the completion of the human genome project in 2003 that the complexity and relevance of what was previously labelled as junk DNA has been realized. In essence, that term has fallen out of favour.
Protecting an individual's right to privacy is a fundamental obligation of a DNA banking system. The National DNA Data Bank has numerous safeguards, and these are well placed to balance the need for information about convicted offenders against the need for public safety. DNA profiles are used only for forensic investigative purposes and are removed from the system when this is warranted. However, there is less clarity on policies related to the retention of bodily substances. The only way to ensure the genetic privacy of individuals whose forensic genetic profiles are contained in the DNA data bank as well as to reassure the Canadian public that their genetic privacy cannot be violated by this legislation is to discard the specimens once the profile has been established.
The DNA Identification Act permits the storage of bodily substances and DNA profiles. Samples and profiles may only be used for individuals convicted of designated offences under section 487.04 of the Criminal Code of Canada. The act specifies that access to the Crime Scene Index, which contains the profiles from bodily substances of a victim or a person who has been eliminated as a suspect, shall be permanently removed. However, the act contains no clear indication that destruction of bodily substances from these individuals takes place.
Destruction of bodily substances is carried out at the discretion of the commissioner. This is problematic in that it does not clearly define the criteria for storage or destruction of these bodily substances. These substances, in fact, are biological repositories that contain considerably more genetic information than the DNA profile that is used for forensic purposes. This creates ongoing potential for violation of the privacy of these individuals.
Federal privacy standards applicable to DNA testing in medical genetic centres are incorporated into the Privacy Act and the Personal Information Protection and Electronic Documents Act. Every province and territory has privacy legislation that governs the collection, use and disclosure of personal information. In addition, several provinces — Alberta, Manitoba, Ontario and Saskatchewan — have legislation that regulates the collection, use and disclosure of personal health information. These provincial acts prevail over the federal acts within their jurisdictions in regulating access to health information, and therefore each medical genetic centre must comply with the act within its respective province. It is not clear what, if any, privacy standards beyond the federal acts would be applicable to the National DNA Data Bank.
The continued storage of bodily substances creates an ongoing opportunity for the violation of an individual's privacy. Provisions for the protection of an individual's privacy in the DNA Identification Act in its current form are effective, but these provisions may change over time and archival samples may be subjected to analysis without consent.
This is somewhat of a technical aside, but several worldwide database recommendations have increased the number of markers. Currently, 13 are used, including another marker that determines the sex of an individual. Two markers often have been added in a number of contexts, taking it up to 15. This increases, in theory, the power of discrimination approximately 500-fold.
In general terms, the more DNA samples that are gathered, the greater the probability that a chance match will be found between two samples. This can be mitigated by testing more DNA markers in each individual, thereby increasing the power of discrimination of the analysis, but it can never be eliminated. In other words, we can never be certain that you will not get a chance match between two people no matter how many markers we look at.
The risk will always exist that a DNA identity match will be obtained between samples from two individuals, and this is over and above scenarios that would be known to cause this, such as identical twins or individuals that are either the donor or recipient of a transplanted tissue, in this case bone marrow. If an individual has transplanted bone marrow from someone else, their DNA profile will be identical to the donor, and we will not be able to tell them apart if we look at their blood.
A number of ethical issues and risks are associated with familial searching in DNA data banks, although a member of the National DNA Data Bank Advisory Committee has published on the merits of this approach to forensic identification. This is a process in which a partial match in DNA profiles between the Crime Scene Index and the Convicted Offender Index would be released to law enforcement agencies, with guidance that a family member is likely to be the offender. The more complete the match, the closer the presumed relationship to the indexed individual. This requires testing of family members of the individual that has a profile stored in the Convicted Offender Index. The authors estimate an increase in the identification of criminals by 40 per cent using this approach.
Familial searching is permitted in the United Kingdom and some states within the U.S., although it is not nationally mandated within the U.S. This approach to the dissemination of forensic information will notify relatives that have a family member in the Convicted Offender Index. It will lead to further disparity in the sampling of some groups, such as the Aboriginal population that have disproportionate rates of arrests and convictions in Canada. It also has the potential to uncover unwarranted information about familial relationships, such as non-parentage — in other words, non-paternity or, in fact, an adoption of which a person was not aware — in addition to the collection of familial data that may have medical relevance that I mentioned previously. This increase in genetic surveillance, combined with the recently increased list of designated offences, has considerable risk of intrusion on innocent parties and should not be granted without consideration of the ethical and legal implications.
An ethics group has been established by the Home Office in the United Kingdom to advise their National DNA Database Strategy Board on policy. Canada would benefit greatly by establishing oversight of the National DNA Data Bank from an authority external to the RCMP and by introducing ethical codes of practice.
Currently, it appears that the data bank and its advisory board report to the commissioner directly. This process may be effectively balancing the need for invasion of privacy of individuals against the need for public safety. However, consideration should be given to a reporting structure and accountability of the data bank that is independent from the police service.
In summary, the CCMG supports the use of DNA technology to aid in the rightful identification and conviction of individuals responsible for violent crimes. However, it is important to consider the potential for unfounded invasion of privacy that may result from incidental clinically relevant findings, prolonged storage of bodily substances, and an increase in the number of innocent individuals profiled as a result of familial sampling.
Thank you for the opportunity to address you.
Senator Angus: Thank you very much. This has been fascinating. First, I cannot resist asking you if you are related to Margaret Somerville, who we hear in the area of medical ethics. I am sure she is known to you.
Mr. Somerville: I know her by name only. I get asked that often, but I only know her from what I read in the press.
Senator Angus: At the end of your presentation, you got into the ethics elements of the subject. I have many dealings with her in medical matters.
New to me in your evidence was that you can get the same DNA from other than identical twins. Your comment about the bone marrow was fascinating.
You indicated that biological repositories exist that contain much more genetic information than the DNA profile. Can you elaborate on that, please?
Mr. Somerville: The question came up in the previous session. In essence, the biological sample that contains the complete DNA sequence from an individual is a vast repository of information, and it far exceeds the information garnered from the 13 markers that are analyzed. Although it was mentioned previously that digital access to information creates concerns, the amount of information available from the biological sample completely eclipses that from the DNA profile.
Senator Angus: I understand. Could you give me one or two examples? I understand about the 13 markers and that a complete DNA profile has many other markers.
Mr. Somerville: Yes. The technology now that is becoming more readily available would allow us to sequence the entire genome of that individual. We would get 3 billion bases; we would not be looking at 13 markers anymore.
Senator Angus: Is that the big risk?
Mr. Somerville: It is a potential risk. It puts an onus on the organization that is maintaining that bank to maintain a higher level of security.
Senator Angus: I am fascinated by this study. It is all quite new to me because I was not a past member of this committee. I find I have been debating with myself in the last two weeks when we have been on this subject.
We go to the DNA data bank and everything is focused on privacy and protecting individuals' rights and so on. Another side of me is thinking, well, this all came about because we are trying to protect society from malfeasance of many types.
This is the social dilemma, obviously, that one needs to have a balance. Are you comfortable that the balance that we have arrived at, which has evolved over this legislation — and now that we are in the reviews — is pretty fair?
You pointed out some risks that exist; yet I find myself thinking about whether we are leaning too far on the privacy side and away from the detection of crime.
Mr. Somerville: I am not an expert in that area. It is very difficult because no matter what course we take, we are always trying to balance those two conflicting needs.
The CCMG was invited as a witness to the review of the legislation previously before a parliamentary subcommittee. It went on record with a recommendation that the list of offences not be increased beyond the serious criminal offences that were initially in place. That is a concern.
Senator Angus: Is it a concern that it might be increased or that it is not being increased?
Mr. Somerville: That it already has increased beyond the original mandate and that it may increase further. The offences list has potential to increase. The sampling on any particular criminal case has potential to increase greatly. If we start sampling family members or suspected relatives and so on, it starts to compound itself pretty dramatically from the concerns that have been placed around privacy.
Senator Milne: I must say you have got our antenna quivering in the breeze. We have been so profoundly reassured that these 13 markers are non-descriptive of any sort of trait. You say that, yes, they are; they can perhaps be used. They are tied to traits such as the number of sex chromosomes. I assume you are talking about individuals with an XXY — or XYY — combination.
Mr. Somerville: Any of those would apply.
Senator Milne: Perhaps Down syndrome as well. Are any others tied into these?
Mr. Somerville: In terms of the classification of the syndromes, some of the markers are actually within genes, so there is a potential for more direct genetic effects that have not yet been determined. However, mostly the clinical information comes as a result of where that marker is physically located, which chromosome it is on and where on that chromosome.
For example, there happens to be a marker on chromosome 21 and three copies of that chromosome are compatible with life — we see that in Down syndrome. For the other chromosomes the markers are on, by and large, we would not expect to see the whole chromosome duplicated, but portions of it. There is more and more evidence of these large segments of DNA that are duplicated or removed in people.
Senator Milne: That is what you mean by copy number.
Mr. Somerville: Yes.
Senator Milne: That is a term I have never heard before.
Mr. Somerville: It is relatively new.
Senator Milne: You raise concerns about the act because there is no clear provision in the act for the destruction of the bodily substances from these individuals. What would you suggest that we change in this act?
Mr. Somerville: This is upon my reading; the act seems to be fairly clear on destruction of samples from convicted offenders once they have served their course through the system. However, I could not find any clear indication of the destruction of samples obtained from the Crime Scene Index that might include victims or suspects that were eliminated. The access to their records is removed, but I could not see any provisions for the actual sample destruction, and that should be clearly stated within the act.
The Chair: My memory may be failing me, but it is my understanding that when the DNA data bank finds a match, what it conveys to the inquiring police authorities, I guess, is not the profile but the simple fact that a match has been found. If I am correct in that, is that a privacy safeguard sufficient to guard against at least some of the clear risks that you are outlining here?
Mr. Somerville: That is my understanding as well. The act, as written, does not permit familial sampling, so that would become a modification of the act.
The Chair: Even if it is not familial, even if it is direct. For example, my profile is in the data bank, and I go off and commit a new murder, and they send in a sample of my DNA asking if it matches with anyone. My understanding is that at that point, the data bank informs them that, yes, it matches the DNA of this woman Joan Fraser. That is the information that is conveyed; no transmission of the actual profile occurs, which would presumably allow people to go off and find out whether I had Down syndrome or whatever.
Mr. Somerville: That is my understanding as well. You are right; the information would not, in theory, leave the lab. However, the lab is still getting access to that clinical information; it is not a clinical lab.
With provisions in place for sharing data between jurisdictions, between countries, then I think the actual profile is exchanged at that point. That clinical information would move with that individual's identifiers.
The Chair: We need to look further into that.
Senator Angus: On your question, what you were getting at there was that they will say that, yes, there is a match, this woman, Joan Fraser. You are saying it is possible that there is not a match? Is that what you are getting at?
The Chair: I was trying to find out whether my genetic information was transmitted to anyone else.
Senator Angus: I understand; the other information.
The Chair: As distinct from my name and identity. I think Dr. Somerville has just told us that, domestically, my genetic information will not be transmitted, but that with foreign authorities it may be.
Mr. Somerville: Yes. I do not know.
The Chair: We will look into it. We will check it out, but it is an interesting point you raise. I am sorry I have interrupted the proceedings again.
Senator Angus: Because you were away when we went to the bank, we may have to go back and ask all these questions, although the lady behind you was there and took copious notes.
The Chair: I even have a DVD of proceedings.
Senator Dickson: Senator Milne took my first question away from me, but I will ask it to counsel of the committee. Is there such a provision in the act, clearly that the bodily substances are to be destroyed? Is it there, or is it not there? Do you want to take it as a question and respond later?
The Chair: They have been furiously leafing through the act to this precise point.
Senator Dickson: Let us assume for a moment it may be there, but it is rather ambiguous.
The Chair: I think we may have a partial answer.
Jennifer Bird, Analyst, Parliamentary Information and Research Service, Library of Parliament: Sections in the act say that the bodily samples shall be destroyed in certain circumstances. One of them is with respect to young persons, when their records are expunged. That is section 10.1 of the DNA Identification Act. Another section is 10(7), which talks about the commissioner destroying stored bodily substances in certain situations, such as when the person is completely exonerated from the offence with which they had been charged; they have finally been acquitted — or one year after the date when they receive their absolute discharge, three years after a conditional discharge, et cetera. In certain circumstances the act specifies that such shall be done.
Senator Dickson: I would like to follow up on that for a moment. In your opinion, are all bodily substances destroyed at some point in time or not? You may want to think about this. I will go to the second question because other people want to ask questions. I think this is rather important.
The Chair: Dr. Somerville may have something to say on this.
Mr. Somerville: On the list you identified — young offenders and previously convicted individuals — there is no mention of suspects or victims. That is our concern.
Senator Dickson: My second question relates to education and certification. I understand the lab we visited here, which is run by the RCMP, is certified, is it not?
Mr. Somerville: Yes, it is. They have an international certification from ISO 17025, which is a fairly comprehensive biomedical certification. They also have Standards Council of Canada certification that also specifies forensic testing as part of the mandate. Therefore, the certification is fairly extensive.
Senator Dickson: Are you satisfied with that level of certification?
Mr. Somerville: I think I may have added it as a footnote. Additions are possible; the U.S. has a certifying body specific to forensics that would add another level of assurance. My understanding from the DNA data bank is that it is a repository, and there are labs across the country.
Certification levels within the individual labs may vary. I think, in fact, the forensic certification may be present in at least one of the labs across the country.
Senator Dickson: These provincial labs or the labs located in other provinces across the country, are some certified and some not? Is there no base standard?
Mr. Somerville: They definitely would be certified. It is just a question of which certifying body. There are so many from which to choose.
The Chair: In your presentation, you talk about provincial health acts and privacy requirements. However, does any province have anything similar to the legislation that we are here reviewing, which governs the operation of the federal DNA data bank?
Mr. Somerville: Not to my knowledge.
Senator Wallace: Dr. Somerville, I must say that, after listening to your comments and those of Mr. Jones who preceded you, I realize how little I know about this. We are all well intended and realize that DNA testing and matching, as in the case of fingerprinting, is for the purpose of providing security to the general public, and it is needed for that purpose.
However, as I heard you talk about the advancement of the technologies, I realized that where it is at today will certainly not be where it is at next week, next year or 20 years down the road. The ability for more detailed analysis of the samples and the use to which they could be put will undoubtedly be different than it is today.
When we look at the act today and the rules and the balances, to balance the intrusion into one's privacy, which DNA sampling creates, and balance that against the security interest that it serves, I am wondering and struggling with what we should consider in moving cautiously because of the nature of the technology; what we should consider putting in place to ensure proper consideration is given as these technologies advance and as there are pressures to expand the use of DNA sampling.
When I say all of that, I notice with great interest that, in your presentation, you speak about the need for that effective balancing between privacy and the need for public safety. You also suggest that consideration should be given to a reporting structure in accountability that would be independent of the police service.
I would be interested to hear you expand upon that, if you would.
I am also wondering beyond that, in more of an oversight role, if you have any thoughts as to what mechanisms or structures should be put in place that look at it 15 years down the road; that make us think beyond where we are today but force us to think about where this may go. Once we look that far ahead as best we ever can, we may find some of the decisions we made today to be quite different.
As I say, Mr. Jones' comments earlier resonated with me in that regard. Do you have any thoughts you might leave with us as to what mechanisms we can put in place to provide that cautious, safe approach but still balance it against the security needs that we all want to serve?
Mr. Somerville: I guess the short answer is that that is far outside my area of expertise.
The question was asked earlier about technical oversight. As a person with a scientific background, I would say that that plays a role. However, you really need ethical, legal and social experts at the table. I fall into that camp as being someone who thinks that because we can do this, we should give it a try. The scientific process does have a tendency to get ahead of itself. Oversight is needed that definitely factors in the technical aspects, but you have to look at it from a societal standpoint, as well.
I have no structure in mind. I am only making the comment that the perception that the entire operation runs under one umbrella and is accountable only to itself, and anything that you can put in place that would sever that reporting structure tie would be beneficial. This is my perception. I may be wrong.
Senator Wallace: Thank you.
Senator Angus: The «operation» being the National DNA Data Bank, correct?
Mr. Somerville: I was referring to the RCMP.
Senator Angus: Well, they run it.
The Chair: That comes under their umbrella.
Senator Joyal: On the point that was raised with the previous witnesses, as you know being in the room, are you aware of any other country that has established this oversight authority to ensure the system remains within the confinement it should be operating under?
Mr. Somerville: The U.K. has made a start at that, but I think it has been out of necessity. The system in the U.K. is somewhat out of control in terms of the list of offences and the level of sampling taking place. I think they have been called to task on that recently. The U.K. is starting to rethink the process. I do not know of any other countries that have strong ethical-social oversight.
Senator Joyal: The system in the U.K., as you know, is much wider because any person under arrest must provide a sample.
Mr. Somerville: Exactly.
Senator Joyal: That opens the system into such a wide horizon that one can realize the risks that exist; the use could go beyond what was contemplated in terms of public safety and so on.
Considering where we are at with the evolution and capacity of the system, we were well advised 10 years ago to suggest to the advisory committee that, at this stage, we may have reached the level whereby it would be prudent in the years to come to have that sort of monitoring capacity on the use and expansion.
We expanded the designated offences during a particular political context. As you know, public opinion is always very much driven by description of crimes. There is always pressure to feel safer. There is even, I would say, easy capacity for politicians to «wipe the bushes» under those circumstances.
It is important that the system contains its own safeguards. A report to Parliament on a yearly basis is not enough. We were supposed to undertake the review many years ago, and we are finally doing it. Suffice it to say, another bill could have been introduced in Parliament that would have taken precedence over our study, and we would not have completed it; we would have completed the bill, which is the proper sequence of events.
We cannot satisfy ourselves that, in the context of all the potentiality of the system, there is not the capacity within the structure of the operation of the data bank to monitor it according to the objective of what you have in mind of maintaining the Charter's principles, maintaining human rights and maintaining the privacy to which individuals should be entitled.
Especially with respect to the family expansion, as you described it, there may be a case somewhere where it will be shown that having the family tested or provide samples would help solve the crime. Then there would be pressures, and I immediately hear the speeches a politician will make in that regard.
In those circumstances, it becomes very difficult to resist the emotional aspect. Laws are not well made when made under the pressures of emotional public outcry. It is in a neutral context today that we re-evaluate the steps and the scope of the system, where we are in a better position to establish that oversight capacity.
As you said in your presentation, this would probably be the best way to balance things. You said:
This process may be effectively balancing the need for invasion of privacy of individuals against the need for public safety. However, consideration should be given to a reporting structure and accountability of National DNA Data Bank that is independent from the police service.
That is probably the best option, the most secure option for us to consider at this stage in how we could manage both objectives of public safety and protection of privacy and individual rights.
Mr. Somerville: I would agree with that.
The Chair: Senator Milne, do you have a supplementary?
Senator Milne: If I may interject, Senator Joyal.
Senator Joyal: Of course.
Senator Milne: You said, "Federal privacy standards applicable to DNA testing in medical genetics centres," such as where you work, "are incorporated in the Privacy Act and the Personal Information Protection and Electronic Documents Act."
Should we do something similar with respect to the National DNA data bank?
Mr. Somerville: My assumption is that it would apply. Both of these acts do not have specific provisions for DNA information. They record, I believe the term is «personal information in any form,» so that is interpreted to also mean DNA.
Senator Milne: It covers DNA, of course.
Senator Baker: My question pertains to the Personal Information Protection and Electronic Documents Act, PIPEDA, which came into effect January 2001. The problem I recall with the Privacy Act and PIPEDA is that provisions in both of those acts say that if the information is required for any investigation relating to an offence against a federal act or any other criminal offence, then the information is not covered by PIPEDA or the Privacy Act. I do not know if you are aware of that.
Mr. Somerville: No. This is in the context of what would apply in a medical genetics centre.
Senator Baker: Of course, in the end, you are then subjected to a judicially authorized warrant to get the information, which is always there anyway. There is no protection under PIPEDA.
Senator Joyal: Another point follows from this, which is that the system reports to the commissioner, as you know, and the commissioner, according to the act, delegates this responsibility to someone else. If something happens in the system that is not in accordance with the framework of this system, it is the commissioner that remains the final judge.
We all know in the Arar report what the report contains in terms of oversights of the RCMP's and the commissioner's responsibility. When we consider the status of the RCMP in relation to the system, it is important for us to understand what the considerations are that the justice who had to go into the Arar inquiry recommended, generally, in relation to the monitoring of the activities of the RCMP that might intrude into the privacy of individuals.
It is important to take that into account in relation to the report we have to prepare. In his recommendation, I think the witness, by the oblique, raised this fundamental issue.
The Chair: I agree that this is an extremely important point that has been raised. I think you have been able to tell from the reaction of all senators, Dr. Somerville, that you have touched a nerve, as indeed did the witnesses who preceded you today, as pointed out by Senator Wallace.
In fairness, I would like to say to anyone who just tuned into our televised proceedings that we have not heard from anyone a scintilla of evidence that abuses have occurred under the present system. It is our job on this committee to examine measures that would be appropriate to ensure that abuses do not occur. However, this is not a trial. We are trying to devise a set of recommendations that will be helpful for the future in the interests of all Canadians, both of the administration of justice and the protection of privacy. This may sound sententious, but it is worth making the point that we are not here to remedy a present ill of which we have been informed; we are here to look at the whole system.
Senator Angus: Also we are here to recognize evolving technology.
The Chair: Precisely, and that can lead to all sorts of developments, some conscious and some not.
Senator Joyal: In fairness, and as my learned colleague, Senator Angus, would say to court in the Court of Appeal, with all the deference I owe to the court, in a decision of the Ontario court a judge concluded that thousands of samples exist that should have been destroyed in relation to young offenders that have not been destroyed.
As the researcher, Ms. Bird, said earlier, section 10 of the DNA Identification Act provides clearly that in relation to young offenders, they should be destroyed. We can call it what we want, but something definitely fell into the cracks of the system, without wanting to impugn any motive or intention. This is an illustration of an element of the reality.
The Chair: I do not dispute that, either.
In your presentation, Dr. Somerville, you said that there is always a risk that a DNA identity match will be obtained between samples from two individuals over and above the matches that you would get between identical twins or the donor and recipient of transplanted tissue.
How great is that risk? What are we talking about here? Is it extremely remote or not?
Mr. Somerville: Theoretically, it is extremely remote. It is one in thousands of billions on the theoretical side. However, in practical terms, the risk is never zero. The concern is that so much strength is given to DNA evidence that it may not be questioned.
The Chair: Did you say thousands of millions or thousands of billions?
Mr. Somerville: In the multiple thousands of billions; one in that number, yes.
The Chair: In a population of 30-odd million people.
Mr. Somerville: In theory, you would run a system whereby you should never be able to get a match between two people in the same jurisdiction, being this country. There are other asides in terms of the power of resolution. For example, this method is 10 times less powerful in the Aboriginal community than in the Caucasian community. Ten times over multiple thousands of billions is not significant, but it is less powerful.
The Chair: Why is that so?
Senator Milne: Is it because there are closer relationships in the Aboriginal community?
Mr. Somerville: Presumably, yes. Within certain populations, you may not get as much of a diversity of markers as you would be looking for. The chances that two would line up would be greater.
The Chair: Depending on your population, that is absolutely fascinating. Colleagues, we are in strong agreement that Dr. Somerville has given us an enormous amount to think about. We will have to talk to many different people to explore this further. Who knows, we may even be coming back to you, Dr. Somerville, as this study continues.
In the meantime, we thank you very much indeed. It has been extremely interesting, helpful in the sense of raising questions but raising the right questions. We are very grateful to you.
Honourable senators, after I gavel this meeting into an end of the open session, I will ask you all to stay for two minutes for a brief discussion of future business of the committee.
Our next meeting will be at 10:45 tomorrow morning in this room, when we shall hear on this same subject from the Office of the Federal Ombudsman for Victims of Crime, from the Canadian Resource Centre for Victims of Crime and from Victims of Violence Canadian Centre for Missing Children.
(The committee adjourned.)