Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 7 - Evidence for May 7, 2009
OTTAWA, Thursday, May 7, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:48 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: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study on the provisions and operations of the DNA Identification Act. Today we are fortunate to have with us as our first witnesses, from the Office of the Federal Ombudsman for Victims of Crime, Mr. Steve Sullivan, who is the Federal Ombudsman for Victims of Crime; and with him he has Ms. Joanne Taché, who is Senior Counsel for the Office of the Federal Ombudsman for Victims of Crime.
[Translation]
Welcome to the committee. I would ask that you make your presentation, and then, we will move on to the question period.
Joanne Taché, Senior Counsel, Office of the Federal Ombudsman for Victims of Crime: Madam Chair, I would like to begin by thanking the committee members for having us here today. Next, we will give you a very short description of our office and its mandate.
The office was created two years ago, in March 2007, by the Minister of Justice and the Minister of Public Safety further to recommendations that victims' advocates and parliamentarians had been making for a number of years.
Our goal is to ensure that the government meets its responsibilities to victims of crime. Our mandate relates exclusively to matters of federal responsibility. We facilitate the access of victims to existing federal programs and services by providing them with information and referrals. We address victims' complaints about provisions of the Corrections and Conditional Release Act that apply to victims of offenders under federal supervision, and we provide an independent resource for those victims.
Our goal is also to enhance awareness among criminal justice personnel and policy-makers of the needs and concerns of victims and the applicable laws that benefit victims of crime, including promoting the principles set out in the Canadian Statement of Basic Principles of Justice for Victims of Crime.
Furthermore, we identify emerging issues and explore systemic issues that impact negatively on victims of crime. The federal ombudsman reports directly to the Minister of Justice. He must submit an annual report to the Minister of Justice, who tables it in Parliament. He may also prepare special reports on specific topics related to victims of crime and submit those reports to the Minister of Justice or the Minister of Public Safety, depending on the issue. When the ombudsman submits a special report to the government, he can request a response from the government regarding the recommendations. I will now give the floor to Mr. Sullivan.
Steve Sullivan, Federal Ombudsman for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime: Madam Chair, I would like to tell you the reason I am here today. You are presently proceeding with a statutory review of the DNA Identification Act. One of the issues considered when the original legislation was drafted, and which has since received mention during the current hearings before this committee and the House of Commons Standing Committee on Public Safety and National Security, was a Missing Person Index (MPI).
An MPI would make it possible for the DNA profile of a missing person or close biological relative to be compared to the DNA profiles derived from found unidentified human remains from jurisdictions across Canada.
[English]
The possibility of establishing a missing persons index or the MPI was initially raised in the mid-1990s as part of the public consultations when the DNA Identification Act was first passed. In 2005, the Department of Public Safety released a public consultation paper on the MPI, and the feedback was very positive. Since then, we have seen multiple private members' bills introduced in Parliament. The bills were often referred to as Lindsey's Law, Lindsey Nicholls being a 14-year-old girl who disappeared in 1993. Lindsey's mother, Judy Peterson, has personally worked very hard to lobby government for changes to the DNA legislation. I have met Judy a number of times, and she is a tireless advocate not only for her own family but for many families in the similar situation that she is suffering from.
The most recent private member's bill was Bill C-279, An Act to amend the DNA Identification Act (establishment of indexes), which was introduced in the House of Commons on May 12, 2006.
This bill was considered by the House of Commons Standing Committee on Public Safety and National Security, and the committee recommended at that time that the government consider the advisability of bringing in legislation necessary to establish a missing persons index after the completion of federal-provincial-territorial discussions on its implementation. The government accepted that recommendation.
At the October 13, 2006, meeting of the federal-provincial-territorial ministers responsible for justice, they agreed in principle to the concept of an MPI and directed their working group to resolve key ongoing concerns and report back to the deputy ministers at their meeting in January 2007.
While the MPI was not included in the original legislation, support for it has grown considerably since that time from the Canadian public, law enforcement, victims' groups and politicians from all parties and all levels of government. I should add they also include the National DNA Data Bank Advisory Committee.
Currently approximately 100,000 people are reported missing every year. Fortunately 95 per cent of those are resolved within 30 days. Of those not resolved each year, over 400 people are missing for at least one year, and there are approximately 270 cases of long-term missing people every year. There are approximately 6,000 missing persons on the Canadian Police Information Centre, CPIC, registry and approximately 500 to 600 sets of unidentified human remains in Canada. Every year there are between 20 and 30 new or partial sets of human remains discovered and over 285 sets or partial sets of unidentified human remains registered on CPIC.
As part of its normal investigation of a missing person case, the RCMP may ask a family for voluntary collection of a sample of the missing person's DNA within three days of the report, and the sample is retained in case it is required at any stage. However, there is no MPI on a national scale and it makes it difficult to match missing persons with the unidentified human remains. You heard witnesses talk about different provinces, but on a national scale there is no ability to do that kind of testing.
There has been little progress on this issue from our point of view since 2006. Originally the main area of concern, as we understand it, was the jurisdictional issue, since human remains are the property of provincial coroners. A consensus seems to have formed or be forming that these concerns could be addressed by allowing the provinces to determine what, if any, involvement they would have with the missing persons index. Therefore, if the federal government set it up, provinces would determine what, if any, involvement they would have at that point.
Despite the widespread support for the creation of an MPI, there is no clear implementation date; there is no clear end in sight. Once legislation is passed, if it is ever passed, officials have estimated it could be more than a year to make it actually operational.
[Translation]
Because many of the missing persons' cases are not criminal in nature, one might be tempted to dismiss an MPI as not being a priority. As Federal Ombudsman for Victims of Crime, I take a different view. Both in my capacity as ombudsman and in my previous work with victims of crime, I can tell you that, for the families of missing persons, this is an extremely important matter that, as we know, involves significant challenges, and the parties involved have taken far too long.
It is a priority for those families every day, and I am concerned that the pace of progress has not taken into account their ongoing suffering. Admittedly, an MPI will not provide the outcome all of those families seek, but it will permit them to continue on their healing journey, whether the death of their loved one was through a criminal act or not.
There are other issues that must also be addressed, such as the limitations of the existing legislation, which focuses purely on criminal matters, how samples will be compared, i.e. just the MPI or the crime scene index, and the need to ensure the voluntary compliance of families.
I do want to stress to the members of this committee the importance of this issue and urge you to ensure it is given the priority that the families who have waited for so long deserve. This is an issue that is close to the hearts of many Canadians, especially those who are in the unfortunate situation of knowing someone who is missing.
The human cost of not knowing what has happened to your loved ones is high. Whatever the cost of the data bank or the MPI, it would pale in comparison to the human cost. Today, I urge the members of the committee to consider including this issue in the recommendations or the report they submit to the government, so as to ensure that the government will proceed quickly with the creation and implementation of an MPI.
[English]
We have written recently to the Minister of Public Safety. I believe a letter has been or will be shared with the committee asking him to make this issue a priority. We will be sharing a copy of that letter with the committee in the other place which, as you know, has also undertaken a study of that. We would be pleased to answer any questions you have.
The Chair: Thank you. Yes, if you would provide a copy of that letter to the committee, it would be greatly appreciated.
Also, I am not familiar — I should be I suppose, but I am not — with the Canadian Statement of Basic Principles of Justice for Victims of Crime. That is available on the web?
Mr. Sullivan: Yes, it is available on our website. We can certainly make copies available for you.
The Chair: If it is available on the website, I will ask the clerk to circulate copies to members of the committee.
[Translation]
Senator Nolin: Good morning, and thank you for making the trip to be here to take part in our study. Allow me to focus on a different area of concern than the one you mentioned, that is, the MPI. I am certain that some of my colleagues will want to explore that issue with you.
I wanted to ask you about victims' DNA. Some witnesses, specifically, members of the National DNA Data Bank Advisory Committee, have suggested that it would probably be beneficial to include victims' DNA in the data bank, in order to make police investigations more effective and efficient.
I wanted to know your first reaction to that idea or if you have thought about it yourself, since you are responsible for promoting victims' interests.
[English]
Mr. Sullivan: We have followed the testimony from both committees and noted this has been raised in both places. It is not an issue we have given a lot of thought to previously, so I do not want to give a definite statement. We would like to consult with various organizations before providing advice to the government.
Having said that, if the issue was the ability for victims to voluntarily provide their sample or consent to having their sample placed in the data bank, it would be acceptable to us, with certain conditions.
We would have to understand what it is they are volunteering for. Is it that their DNA is run through the data bank on both of the indexes, so the crime scene, and it could be the defender? Those things must be properly explained to any victim who is considering consenting. On the general question, I think we would be open to exploring further a policy practice where victims could voluntarily provide their DNA to assist in an investigation.
[Translation]
Senator Nolin: If we take the rationale for including victim DNA profiles one step further, what do you think about the fact that the DNA profiles of some children and minors will be in the data bank?
[English]
Mr. Sullivan: This goes back to the parameters of what it is being compared against and, more important for children, how long the DNA would remain in the bank. Obviously it would be parents who would give consent. What is the process then for them to ask for the DNA to be removed or delinked or whatever the technical term is?
It is a scenario or process, and a number of safeguards must be built in. First, the parents or victims themselves must clearly understand what they are doing, but also understand at what point they want to withdraw their consent — for example, the sample has been in the data bank for two years and at some point they have changed their minds.
The people I have worked with over the years clearly want to see crime solved. If this would help law enforcement solve crimes, I think most people would be amenable to providing voluntary consent, for themselves and for their children.
Senator Baker: In your excellent presentation you mentioned that in 2005 the Department of Public Safety released a public consultation paper on the MPI and the feedback was overwhelmingly positive. In that consultation paper, as I recall, questions were asked. Some asked what model citizens would prefer. It mentioned that in the U.S. each state had a data bank uploaded to a virtual national data bank. In Australia there was an addition to the DNA bank to cover mass disasters and so on.
Have you given any thought or do you know what the response was to the federal government's questionnaire regarding the type of model people would prefer?
Mr. Sullivan: I certainly have not seen the results, but my understanding is that the preferred option was to make the missing persons index part of the National DNA Data Bank. Certainly in the United States it is a very different process, as you know. Each state has its own criminal law and its own data bank.
I think our system lends itself to having a connection to the National DNA Data Bank. I believe that was the preferred option.
Senator Baker: It also raised the difficulty — I do not know if it is a difficulty, but as I recall it was raised as a difficulty — that there were two distinct types of DNA: one nuclear, and the other type of DNA, which is more expensive to investigate, is the DNA sometimes found at a crime scene or of the remains of a person over a period of time. In fact, the nuclear DNA that we commonly refer to at the data bank would not be able to be used in this way. I am looking at the former coroner from British Columbia across the table from me, and of course it is provincial jurisdiction. We have talked about that quite a bit. The problem was raised as to the two types of DNA and questions were asked concerning that. Do you have any thoughts on that?
Mr. Sullivan: I am hesitant to talk too much about those issues because they are sort of over my head. My understanding is that a number of issues need to be addressed as this proceeds. The biggest barriers were jurisdictional issues, and now it is a question of cost, I believe.
I think those questions can be worked out. That is not to say they are easy, but from our point of view it is the most effective way of assisting families to identify their loved ones, even if it is more expensive. We talked a bit about the human cost. You cannot put a price on those things, and obviously those things are often not factored into decisions taken by various levels of government.
I do not want to say too much because I do not know where that discussion is at within the provincial and federal jurisdictions. From our point of view, the most effective way is the best.
Senator Baker: The other key question asked in that consultation paper, as I recall, was the option of having the missing persons index deal only with the missing persons and the unidentified remains. That was one option. The other option was to include the national data bank information in that. Two models were presented for discussion. I presume, from your comments here today, that your preference, as the ombudsman, is to have the three of them united into your model.
Mr. Sullivan: I think that makes the most sense. We have one of the best examples of a DNA data bank anywhere in the world. It is fairly well-respected, and we should build on that.
There was still the question of whether a family member who consents to provide a DNA sample to help identify his or her child also consents to have his or her DNA run through the whole data bank. Then it will be tested against unsolved crimes, for example. That question needs to be worked out. It comes to the voluntary nature of these things. That is still a question.
If there were a way to connect the data bank with the missing persons index, but only test against the human remains, I think people would voluntarily do this. They are not suspects in anything. They should be able to make that informed consent and informed decision.
Senator Baker: The consultation paper also mentioned the existing practice in Canada in certain jurisdictions with the obtaining of DNA identification as to the period of time that it would be kept. As I recall, there was quite an unusual sentence there, which was that it would be kept in all other instances up to 100 years. Do you recall that statement? Of course, when the person was found it would be disposed of, but do you recall the 100 years?
Mr. Sullivan: I do recall something like that. It was a fairly long period of time. It was also if at any period of time the family wanted to withdraw their consent and have their DNA removed, they could do that.
Senator Baker: Yes, it is existing law. That was the other option.
Senator Campbell: Welcome. On a number of different issues, DNA is a science in constant transition. All of this stuff has come from one common point and keeps growing. At the end here, you said that the issues must be addressed — criminal matters, a missing persons index or the Crime Scene Index.
I am a former chief coroner and I support this MPI completely. I do not think you should pick and choose. I think the data should go in. I think it should be available. If we have a missing person, how do we know whether or not the DNA at a crime scene is from that missing person? I do not like this idea of picking and choosing.
The 100-year period is interesting, because I have recovered remains that have been over 100 years old. We have pulled DNA off them. Of course, we have had nothing to match it with, but we were able to do some genetic testing to determine, for instance, race or background. The 100 years is relevant only to the data that you have.
Why are we having so much difficulty in getting a bill passed? Why are we having this trouble? It seems like a no-brainer to me.
Mr. Sullivan: It does. I think the frustrating part for people like Judy Peterson is that everyone seems to agree that this is a good idea and that this would benefit a lot of people — not everyone, but it would benefit a lot of people.
There are jurisdictional questions and some of the other questions we raised. Those can all be worked out; I do not think they are insurmountable. I think ultimately it comes down to making it a priority and the question of who will pay for it. Those are often questions asked when governments look at various things.
Senator Campbell: You said it: What price can you put on this? What price can you put on the identification of human remains and the ability to give some closure to a parent? What price do you put on being able to link up a missing person with a crime?
One interesting thing you say here is that because many of the missing person cases are not criminal in nature, one might be tempted to dismiss MPI as not being a priority. We have to get over this. I was a police officer. When someone was reported missing to me, I immediately went into criminal investigation. I refused to go with "runaway" all the time. I refused to put people in a box. When someone is missing, to me, there is a criminal event. I am quite happy when I find that young person alive, but when you do not start on that position then you start on an investigative trail that never gets you back on board. Frankly, if someone reports somebody missing, I want that DNA within 24 hours. I want it into a bank and I want it available to all investigators across Canada.
You can read how many times someone goes missing and they are said to be a runaway or they had a fight with their parents, or whatever; it always starts from that. We have to get rid of that myth and say that we start from the point of view that this is a criminal event and hope that it does not happen.
Regarding the jurisdictional issue, I know that provincially we have the responsibility for identification. Surely there should be an ability or a way for us, as legislators, to say, "You know what? The only organization that can possibly handle this is national, and the only national bank we have is the RCMP. We need to fund this."
Do you think that would be difficult to do? Do we have to open a Constitution to identify people who are missing?
Mr. Sullivan: I certainly hope not. I think the provinces would be quite willing to participate. I think some of the questions and concerns they might have had initially have been resolved. I think there is willingness to participate. I think it comes down to making this an absolute priority.
Senator Campbell: Yes, the will.
Mr. Sullivan: Absolutely, the will to get it done. It has been talked about a lot. I do not pretend to say that the discussions are always easy around the federal-provincial-territorial tables, but this is an issue that will not go away unless someone has the will to do it.
Senator Milne: I have great sympathy for establishing a missing persons index. I think this is a marvellous idea. It would be a great tool. My problem is that to do so, you would have to use familial DNA. You would be putting familial DNA into an MPI. Therefore, in spite of what Senator Campbell says, there needs to be some strict isolation between the missing persons index of DNA and the criminal DNA that we are collecting now.
Again, we come to a real problem, because you might have in the Crime Scene Index both an unidentified victim's DNA and a criminal's DNA. There is this dichotomy I am really concerned about and trying to find a solution for.
That is my first question — whether you can offer me a solution.
Mr. Sullivan: I think part of it is what Senator Baker and I touched on, namely, how it is really consent. I think you are right that people who want to find their children will voluntarily give samples of their hair or DNA for the search. However, they might have concerns about their DNA being used for other purposes that they did not intend it for.
That comes down to informed consent, especially if people have limitations on what they want their DNA to be used for. These people are not suspects in anything. For the most part, police have not suggested they have done anything wrong. They should have some control over how their DNA is used, the ability to separate and say, «I am giving you my DNA for this purpose and for this purpose only. If at some point I decide that I want to remove my consent, then I can do that as well." I do not pretend to understand the technical stuff or how that would be done.
Senator Milne: It then goes into this amalgamated DNA bank and someone else says, "Bingo; we got him." How to separate these two things is a real problem.
My second concern is about absolute guarantee of destruction of the samples and the DNA profiles after a missing person has been found. We have heard conflicting evidence as to whether these samples are actually destroyed and whether the connection between the DNA sample, the profile and the person is ever actually destroyed and cannot be reconstructed. We have heard that it can be reconstructed.
Mr. Sullivan: I followed those discussions. The courts have recently weighed in, particularly with respect to young offenders and how those records are dealt with. I do not have an answer for you, but I agree with you. If people are voluntarily giving their DNA and either they identify the person and then want their DNA withdrawn or at some point they say, "We just want to withdraw our consent," that is done absolutely, I guess, for lack of a better word.
Senator Campbell: I have a supplementary question. For the most part, from a missing person, I am not going after familial DNA, because if I get there within 24 hours I can find DNA in anybody's house from that victim. I can get their hairbrush, clothing, and so on. So I am not asking the parents to give their DNA, or very rarely. In fact, the only reason we do that now is because we find bones; we find the missing person perhaps through anthropological or dental. They say, "We think this is Larry Campbell. We do not have his DNA, but we know where his parents are."
If we had a missing persons bank and we went for DNA within 24 hours, that is the best you can get; that is where we would be going. I have difficulty sometimes with the argument about what you would use this DNA for.
The Chair: Is this a question or an observation, Senator Campbell?
Senator Campbell: Thank you, Madam Chair. I was just heading off on a rant there, but I am okay now.
Mr. Sullivan: It seems to me that, moving forward, you are right; you will get the DNA of the individual. However, looking back, for people like Ms. Peterson, whose daughter was missing 15 or 16 years ago, when there was no missing persons index, you might have to go to the family for those historical situations.
Senator Joyal: My perception of the issue in relation to victims incarnates itself into various scenarios. Let us take the example of an air crash, as happened in Nova Scotia some years ago. There, of course, bodies of victims are recovered and some cannot be identified. I can understand that in that case, a family member would spontaneously offer DNA to be able to identify the dead person.
It seems to me that we are in a case where there is no allegation of a crime. We want to identify the person. In that scenario, in my opinion, once the person has been identified, the sample should immediately be destroyed. The person offering the sample should get that assurance and there should be someone responsible to make sure it is destroyed. That is one scenario.
Let us take another scenario. A person is reported missing in an area. Body parts are recovered and the police want to identify the body. The family offers samples. In that case, we do not yet know what the cause of the death is, or we might know that the person has been murdered. In that case, there is an investigation going on.
My concern is that if a member of the family volunteers to help the police, I do not see why the guarantee of privacy should not be given to someone who wants to cooperate with the police to identify and to search for the guilty person.
Then you have another scenario in which we are not talking about a missing person. Let us take the scenario of organized crime, gangs that kill one another, and the police find the body of such a victim and want to identify the person. That case is in a totally different kind of context.
It seems to me that there is not one simple solution for all those scenarios. As you know, the objective of the act is to balance the need for public safety with the protection of privacy of an individual.
When an individual volunteers for family purposes, for instance, because he is experiencing grief and sorrow and wants to be at peace, and when someone helps to solve a social situation, such as an air crash, it seems to me that is a totally different kind of context. That is why, in that case, privacy protection prevails over running the DNA samples over all kinds of systems; that person has volunteered, but maybe we are looking for him in the data bank somewhere else, that kind of fishing expedition.
If we want to establish some guidelines to help to establish the index — and I agree with the principle of the index — we have to maintain the different lines between the different persons offering to help to identify the missing person. In one case, there is no allegation of any crime; it is just helping to identify.
That is what we received from Dr. Somerville. You may not have a copy of his presentation from yesterday. Dr. Somerville is the president of the Canadian College of Medical Geneticists. He appeared here yesterday. On page 2 of his brief, he says:
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.
That is the problem in the various scenarios I have outlined to you. If we are to make recommendations on that issue, we should be able to qualify. I know that the one-size-fits-all solution seems to be easy for everyone, and there might be people who think we should go that route. However, in my opinion, according to the principles of the act, we have to distinguish among the various scenarios and subscribe to your objective of bringing peace and the end of fear for persons who think that a loved one has disappeared and who want to ensure that due respect is paid to the memory and to the body of the person. Do you not think that we should go in that direction?
Mr. Sullivan: Absolutely. If families are voluntarily giving their DNA, whether it is a crime scene or whatever the situation where their loved one's remains have been found and they want to test, they should know exactly what they are volunteering to do, which is to give DNA to help identify their loved one. That should also include that once the identification is made, or if they change their mind at some point, they can have the DNA removed, and that means absolutely removed.
If what you are proposing is that the legislation needs to be amended to give that assurance — as Dr. Somerville said, currently there is not the destruction of the samples — we would certainly support that.
Even with respect to organized crime where someone is found, I have worked with family whose sons and daughters have been involved with crime, and they suffer every bit as much as any other family. I know you were not suggesting this, Senator Joyal, but their need to find closure, even if their son or daughter were involved with something that they would prefer they were not involved with, is as important as anyone else's.
Senator Joyal: As a federal officer, were you in touch with the Privacy Commissioner to review the principles that could be implemented in the establishment of a national index to ensure that the system that would be put into place would pass the test of the Privacy Commissioner? I reviewed the testimony that we heard from the Privacy Commissioner two weeks ago, and I do not find anything in the presentations that were made to us by the representatives of the Privacy Commissioner and the policy directorate over the national victim index that you are calling upon. Have you been in touch with the Office of the Privacy Commissioner on that?
Mr. Sullivan: We have not yet had this particular discussion with her office. We are trying to get this back on the government's radar and to make it a priority.
Having said that, once we have an indication that these discussions are moving forward, we would certainly have that discussion with the Privacy Commissioner. If the legislation comes forward, she would have views on it, as well.
Senator Joyal: If you want to go faster, maybe it would be good for you to get in touch with the Office of the Privacy Commissioner so that the proposal put forward is already tested. That would save time, especially, as you realize, because it is difficult to have legislation introduced and passed three times in each house, enacted and so forth. Those issues are difficult in terms of the principles at stake. The proposal being studied would move more quickly if you could tailor it in the context that it would meet the protection of privacy and human rights that you were looking for in this legislation.
Mr. Sullivan: It is an excellent suggestion and we will undertake to do that.
Senator Angus: Good morning. I am sorry I was not here when you made your presentation; I had another engagement. I may go over some ground that is covered; if I do, please tell me and I will withdraw.
I think it is fair to say that we have been hearing that the system — the DNA legislation and the data bank — is working relatively well. However, jurisprudence has been brought to our attention that indicates issues of non-destruction of samples and so on, especially in the case of young offenders. I think it has at least been suggested by some that that is one way the system could be changed.
If this does not fall within your purview, I will understand. However, I think it does, from what I am hearing you say about the missing persons index and the concerns of some of my colleagues about familial profiling. It was suggested that perhaps an improvement to the system would be adding another layer. I am always against further layers of bureaucracy or government. However, with the data bank, the people in charge of samples and the destruction of samples seem to be unsupervised. The RCMP seems to be a law unto itself in this area, as we have heard in other areas.
Do you have any comments to make in that regard? I went away last night worrying about accountability in this area.
Mr. Sullivan: I do not know that we have much to add. I followed some of the testimony of the committee, and if a missing persons index proceeds and families are voluntarily giving DNA, we would want to ensure there is a process whereby their DNA would be completely removed or destroyed.
I know those are not the exact issues raised in the courts, but we would hope there would be a process to delink or to destroy the samples. That the samples should be destroyed is among the concerns raised about young offenders and other people.
Senator Angus: Structurally, I meant something more. We have heard about a sort of watchdog committee, if I understand. Former Supreme Court Justice Cory is involved in one, but it is advisory. I should have asked it at the time, but does anything come to your mind, in the very sensitive position you hold, that could allay fears?
It has been repeated here that it is working well. However, you know we are starting to get a little sense that it might not be working that well. Should there be more oversight?
Mr. Sullivan: Mr. Justice Cory said he would be curious to find out why the samples were not being destroyed now. Is it a technical issue, or one to do with legislation? That is the first question your committee would want to explore with witnesses, or send him a letter to find out the reason.
Again, I have not put a lot of thought into it, but maybe it is a question of looking at the advisory committee. Is that a place where there could naturally be more oversight? I do not know whether I have the knowledge to provide guidance to you.
Senator Angus: My question was not geared only to the destruction of samples as required but also to other elements of the management and operation of this very important entity. As we said, there is a constant effort to find balance between public safety and locating missing persons on the one hand and privacy and basic fundamental rights of citizenry on the other.
The Chair: We have 10 minutes left.
Senator Dickson: I support in principle the idea of a missing persons index.
Mr. Sullivan, you made an excellent presentation. Within the realm of our mandate now — which is to examine the DNA Identification Act — do you see any changes in the existing act that we could recommend that would be helpful in getting people to take more seriously the need to have a missing person index? Here is another way to put the question: Is there anything in here that particularly perturbs you that we should recommend changing in the existing act?
Mr. Sullivan: One limitation of the current act is that the DNA data bank is used for criminal purposes. It is a criminal law tool. We know that many missing person cases are not criminal in nature. People voluntarily go missing — they do not want to be found — and they go missing for a number of other reasons. Many of these cases are not criminal.
I think that barrier in the current legislation could easily be remedied if there were agreement to move forward. I think it would help if your committee expressed to the government that this is a serious issue. It has not received the attention it deserves. I know there are questions about cost, and certainly in this environment those are difficult questions.
However, we also talk about the human cost. There are people out there suffering and every single day they pay those costs. To be able to bring home and bury their loved one, and to have a place to go to remember that loved one, would be one of the greatest gifts the government could give people.
Senator Campbell: I have a clarification for Senator Joyal. I know this is a public hearing and I would be remiss if I did not point out that, in the Swissair crash, every single person on board was identified through DNA as a result of the Chief Medical Examiner of the Province of Nova Scotia, John Butt. It was unprecedented. No one was unidentified on that plane.
The Chair: I believe the National DNA Data Bank was closely involved and did most of the work, as I understand it.
Senator Joyal: Thank you, Senator Campbell. In fact, it outlines the principles that I tried to express. In this case there is no criminal allegation against the people who have been identified, neither the ones who have given their DNA nor the victims, per se. This is not a source for further criminal investigation down the road.
Once the investigation is finished, this is over. In that case, I think all the assurance and the capacity of monitoring the system, as Senator Angus has mentioned, should be that all the samples are destroyed afterwards. It is finished, over, no more; it is done.
This is a different case than missing children. Maybe we should ask for youth among the missing persons; there are more children than adults. I do not think that was mentioned. However, with missing persons, there are all kinds of implications. The missing person might be a person sought for the commission of a crime. The missing person is not just a teenager leaving the house and disappearing. The missing person might be a person the police suspect. In that case, it is much more difficult to draw the line regarding the protection being maintained when someone volunteers a sample.
That is why we have to understand the implications if we are to amend the legislation to provide for safeguards, in particular where children are involved, as Senator Nolin mentioned. When a 12-year-old child, who was reported missing for three months, is found and identified, the DNA should not remain in the data bank forever. There must be a time limit. As Senator Campbell has said about the obvious solution to make it easy to find the answer, the principles at stake have to be fine-tuned to protect the future of the person and those who volunteer, and to ensure that we enhance public safety by assisting police, to a point, in their quest to find the perpetrator of a crime.
You are right to say that perhaps we should request in writing from the Privacy Commissioner the relevant recommendations to help us to move on with the capacity of monitoring, as Senator Angus mentioned.
The Chair: Honourable senators, shall I write to the Privacy Commissioner to put those questions?
Hon. Senators: Agreed.
The Chair: Consider it done.
Mr. Sullivan: Madam Chair, in the scenario provided by Senator Joyal of the 12-year-old child, if the missing persons index were focused only on human remains and samples of individuals who are reported missing, then that young person would be identified only if the remains were found. It would not be a question of the child's future being tarnished by involvement in the data bank. It is important to build in those kinds of protection.
Senator Baker: The discussion paper put out by the federal government in 2005, which you referenced at the beginning of your address, mentioned that this Senate committee had recommended an advisory board, not an oversight board, to the existing data bank. I recall that the discussion paper suggested an actual oversight committee, if we were to implement the suggestions from the discussion paper. For the very reasons given by Senator Joyal on the increased privacy protection questions that come into play when we deal with non-criminal matters such as this, do I understand correctly that you are in support of some kind of oversight if we were to bring in a missing persons index?
Senator Angus: Even if we do not do that.
Senator Baker: What would be the need of it if we did not bring it in?
The Chair: We are talking about a missing persons index.
Mr. Sullivan: I will speak to the missing persons index. We all agree that this is a good idea and we should move forward with it. However, recognizing that the use of this DNA is different than the original intent of the use of the data bank, I agree with the idea of additional oversight to provide protection for those families who volunteer their DNA to help. What form it takes, I will leave to this committee, but I want to ensure that those protections are in place.
The Chair: Mr. Sullivan and Ms. Taché, thank you for being extremely helpful to the committee.
Our next witnesses are Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime; Sharon Rosenfeldt, President, Victims of Violence Canadian Centre for Missing Children; and Lusia Dion, Director and Founder, Ontario's Missing Adults. Ms. Illingworth, please proceed.
Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime: Good morning and thank you for having us here this morning. This is a joint submission by the three organizations. I apologize that you did not receive our brief sooner than a few minutes ago.
The Canadian Resource Centre for Victims of Crime, CRCVC, is a national non-profit agency that works to ensure equitable treatment of crime victims in Canada. Founded by the Canadian Police Association in 1993, the CRCVC is one of the longest-standing non-government agencies providing support, assistance and advocacy to victims and survivors of violent crime. The agency did not arise out of a single issue or event. Rather, we strive to support the concerns of Canadian survivors of many kinds of violence and criminal victimization.
We have long been supportive of the use of DNA technology to facilitate obtaining genetic samples from individuals suspected of having committed serious violent offences. We believe the use of DNA technology contributes to a safer society.
DNA is a powerful tool, and I have a few statistics from the National DNA Data Bank. As of April 27, 2009, the data bank has assisted in 11,651 criminal investigations, and that is crime scene to offender hits, including 739 murders; 1,556 sexual assaults; 283 attempted murders; 1,358 armed robberies; 6,566 breaking and entering with attempt, committing offence or breaking out; 815 other assaults; and 334 other crimes.
Sharon Rosenfeldt, President, Victims of Violence Canadian Centre for Missing Children: When Bill C-13 and Bill C-18 came into force on January 1, 2008, the scope of the National DNA Data Bank was expanded. The 2007-08 annual report of the National DNA Data Bank states:
The expansion of DNA offences means more convicted offender samples will qualify for entry into the COI. An increase in entries for the Convicted Offender Index ultimately means that more crimes will be solved and more offenders brought to justice, all of which contributes to making Canada a safer and more secure place to live.
The CRCVC is in agreement and continues to support the amendments enacted in 2005 and 2007.
At this point, I would like to mention that Ms. Illingworth would normally read the whole brief so it would not be confusing. She has a very sore throat, so we are trying to help her out here.
I am from Victims of Violence, and I have been involved with these issues for many years. We will just go back and forth, if you do not mind.
Lusia Dion, Founder, Director, Ontario's Missing Adults: We support the stringent procedures that govern the handling of biological samples and resulting DNA profiles to ensure that the privacy rights of individuals are protected. However, we do not believe that the privacy rights of offenders should override concerns of public safety for Canadian society.
Ms. Illingworth: Regarding intrusiveness, we believe the collection of a DNA sample via blood, hair or a swab of oral fluid is a minor intrusion in a physical sense. The victims we work with on a daily basis, sexual assault victims, families of murder victims, et cetera, feel strongly that the intrusion of a pinprick on one's finger, six to eight hair samples or a mouth swab is minimal given the potential for the sample to help prevent another person from being victimized.
Ms. Rosenfeldt: The CRCVC does not believe the number of DNA samples included in the data bank should be kept to a minimum. We believe and suggest that many Canadians would agree that DNA samples should be taken at the time charges are laid instead of upon conviction. We feel this will assist in the protection of innocent victims as well as help exonerate the falsely accused. In the United Kingdom, authorities do take samples from suspects upon their arrest. By the end of 2005, over 3.4 million DNA profiles were held in the United Kingdom database, the profiles of the majority of the known active offender population.
The reality is simple: the more DNA samples of offenders we submit to the data bank, the more crimes we will solve. The CRCVC believes that police must be permitted to take samples when someone is charged with a designated offence before that person is released on bail. We believe this will help to deter the offender from committing further offences while on bail due to the knowledge that their DNA could be linked to their future crimes. We do not believe the data bank should retain DNA samples taken during criminal investigations from people who are not charged or who are later acquitted of alleged offences.
Ms. Dion: Prior to murdering 11 children, Clifford Olson had over 90 criminal convictions. While in Nova Scotia, he was charged with sexually assaulting a child. He was granted bail and returned to British Columbia. A warrant was issued, but it was not enforceable outside of Nova Scotia. If authorities had been able to take a sample upon the laying of charges, they could then have run the sample through the data bank to see if the suspect in custody — in this case, Olson — might have been involved in other unsolved offences. If any hits were returned, this would have provided the basis for justifying a higher priority on locating the offender, that being issuing a Canada-wide warrant.
This is not to suggest that had a DNA data bank existed it would have prevented Olson from murdering 11 children. Rather, this example is presented to illustrate a serious flaw in our criminal justice system: most offenders are granted bail and many flee to avoid facing their charges. With no DNA sample to link them to future crimes, they are free to continue offending in other jurisdictions.
Ms. Illingworth: Now we will address the issue of the MPI, the missing persons index. In 2005, our agency called for an index in our brief to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. Later that year we authored a report entitled Developing a Strategy to Provide Services and Support Victims of Unsolved, Serious Crimes. Again we advocated that the federal government, in cooperation with the provinces, proceed with efforts to create a missing persons index preferably as part of the National DNA Data Bank to help identify unknown human remains.
We again urge the government to develop a missing persons index, and we do so with the support of families of missing persons and of non-profit and charitable groups working on their behalf. Both Ontario's Missing Adults and Victims of Violence Canadian Centre for Missing Children advocate for amendments to legislation for the creation of an index attached to the National DNA Data Bank.
We find that there are many benefits to families with missing loved ones. In the majority of missing person cases, the missing person returns home safely within a relatively short period of time. However, not all cases are resolved as quickly. Some families struggle for years or decades without knowing the fate of their loved one.
There are recent cases in which older unidentified human remains have been identified. Although it is never an easy realization, some families do come to understand that they may not learn the fate of their missing relative for many years to come. Families want to know that everything is being done to locate their missing loved one. A frequent fear is that he or she will be forgotten and never identified if the family is no longer able to keep up the search.
The missing person DNA index provides family members with a measure of relief because it reassures them that with the submission of a biological sample, their family member's remains will be identified regardless of where or when they are located.
We work with families who have missing loved ones, and almost without exception the families support the creation of a missing persons index as part of the National DNA Data Bank.
Ms. Rosenfeldt: In 2005 there was a private member's bill before Parliament, Bill C-240, which would have expanded the DNA data bank to include a national missing persons index. MP Gary Lunn introduced the bill on behalf of one of his constituents, Judy Peterson, with whom you are familiar. Ms. Peterson's daughter Lindsey had been missing for 10 years at the time and was presumed to have been murdered. On her website, Ms. Peterson says:
Although I can't help being hopeful that Lindsey may still be alive and well, my search for answers has convinced me that the need for a national Missing Person and Found Remains databank is urgent. . . .
I believe that Canadians will be as shocked as I was when I realized I could not provide my own DNA sample to be placed in a national data bank. If Lindsey had met with foul play, she could be identified through my DNA. My hope was that once she was identified, the murderer would be caught. . . .
So you see, this legislation is not just about finding missing loved ones. This legislation will link victims to crime scenes and give the police the information they need to investigate crimes and keep violent criminals off the street.
Ms. Dion: British Columbia mother Glendene Grant knows too well what it is like to yearn for news about a missing loved one. Her daughter, Jessie Foster, disappeared while being forced to work in Las Vegas as an escort. At the time, she was dating a man who allegedly abused her and identified himself as her pimp. Jessie has now been missing for three years.
Ms. Grant has had first-hand experience with the relief that DNA testing can provide. Her DNA has been tested and disqualified as a match against the remains of an unidentified woman found in Texas. Thus, Ms. Grant continues to believe that her daughter is still alive. Jessie's parents support the need for families to be able to submit DNA samples in Canada, as well as the U.S., to help locate or identify missing persons. «Until Jessie is found,» Ms. Grant says, "it is hard to be a normal person. My life is nothing but missing and murdered people."
Ms. Illingworth: Regarding benefits to public safety, in comparison to other countries, the number of unidentified human remains in Canada is relatively small. This suggests that those remains that tend to stay unidentified present unusual circumstances.
At times, only partial skeletons are found. Decomposition, environmental conditions and animal activity may further contribute to the difficulty in establishing identity, cause and manner of death. However, it needs to be made clear that these remains and biological samples represent an individual — one who is missing from his or her loved ones.
As Ms. Peterson so clearly notes, identifying human remains involves more than providing answers to families. There are consequences to public safety as well. Whenever human remains are discovered, coroners are required to determine whether death occurred as a result of foul play, suicide, accident or natural causes. Frequently, discussions about missing and unidentified human remains are presented as though identifying the deceased is the final step. This is only true in situations where human remains are identified and the death is determined to be suicide, natural or accidental. In cases showing evidence of foul play, identifying the victim is a first step for the police in apprehending the person or persons responsible.
Ms. Rosenfeldt: Unfortunately, there are cases in Canada where huge amounts of investigative efforts are spent trying to identify the victim, rather than pursuing suspects. DNA technology holds the promise of accelerating the identification process, thereby enabling police to more quickly direct their investigative efforts at identifying the person or persons responsible in the case of homicide. Offenders should not be able to avoid detection simply by taking steps to prevent the identification of the victim.
Two recent cases can be used to demonstrate the importance of knowing a victim's identity for ensuring that public safety is maintained. In the late 1960s, the bodies of two males were recovered from rural areas of Ontario. Based on details recovered at the places of discovery, police believed that a single offender was responsible for the deaths of both men. In 2006, facial reconstructions were created of the men and public assistance was sought to help in their identification. One was identified as Richard Hovey almost immediately. In 2009, the second was identified as Eric Jones. Based on the identifications, police have been able to recreate timelines around the disappearances of the two men. Police are now faced with the challenge of compiling evidence against a suspect who is accused of two murders around 1967, and who is currently serving a sentence for a third murder.
There are also unidentified murder victims located more recently whose killers remain undetected. For instance, the name of a woman found at a rest stop near Guelph, Ontario, in 2005 remains unknown. Today, we have the technology and legislation to create a missing persons and unidentified human remains data bank that might help to identify this woman and redirect the investigation into locating her killer. Her family is very likely searching for her and missing her.
When unidentified remains belong to homicide victims, murderers roam free. This represents a major public safety issue that can be addressed by augmenting the National DNA Data Bank to link missing persons with unidentified human remains.
In conclusion, the power of DNA technology has been demonstrated in countless ways — from identifying victims of the World Trade Center attacks to tracing seemingly unrelated sex assaults to a single offender.
We believe Canada is in need of a missing persons index attached to the DNA data bank. A DNA MPI linking unidentified human remains with missing persons would provide police with a powerful tool for use in cases that present unique challenges. Not only would this mean providing immeasurable relief to some families with a missing loved one, it would also enhance the safety and security of Canadians nationwide.
Furthermore, as this statutory review demonstrates, discussions surrounding proper retention and destruction of DNA samples can be strengthened through collaborative mechanisms such as this one.
Thank you very much on behalf of all three of us. We worked on this together. There was a lot that would have been redundant had we each read one individually, so we appreciate your patience.
The Chair: It is also simpler for us if you can produce a joint submission. It minimizes our paperwork, and the mere fact of its being a joint submission by three different organizations gives it more weight.
Senator Nolin: First, I want to offer you, Ms. Rosenfeldt, my condolences for the death of your husband, Gary.
Ms. Rosenfeldt: Thank you, sir.
Senator Nolin: I recall you and your husband testifying in front of us many years ago.
Ms. Rosenfeldt: Many years ago, yes.
Senator Nolin: Thank you once again for being with us today.
Senator Joyal: It was 10 years ago.
Senator Nolin: I think it was more than 10 years.
Ms. Rosenfeldt: Oh, yes.
Senator Nolin: We were studying at that time an amendment to the Criminal Code, presented by our colleague, but let us stick to what we have in front of us today.
I do not want to get into the missing persons index. I am sure my colleagues will.
On page 2 of your brief there is a sentence at the bottom of the page that, for me, needs to be explored. I hope you will give me more.
You say that you do not believe that the privacy rights of an offender should override concerns of public safety for Canadian society. I do not want to get into the legal argument of this, and I understand where you are coming from, but I want to hear more about where we should draw the line. How do we do that?
The jurisprudence is already giving us tools where the courts are dealing with those overriding mechanisms of rights over other rights. Who wrote that sentence?
Ms. Illingworth: As an organization, this is an issue we struggle with a lot, not just in this legislation, but with all the families we help on different issues.
Senator Nolin: Me too. That is why I am asking.
Ms. Illingworth: We have difficulty explaining to families we work with that offenders in Canada do have a certain right to privacy. It remains a difficult issue for our organization because many of the families we help perceive that the offender's rights override their own rights to be a part of the system, to have a say and to be heard in the system. That is the angle we are coming from.
Senator Nolin: So your preoccupation is the perception that those rights are overriding the public good? Is that what you are saying?
Ms. Illingworth: Yes.
Ms. Rosenfeldt: That is correct, yes.
Senator Nolin: If it is only the perception, there is nothing we can do, at least at the level of the law. Maybe the media could do something, but I do not really see what we can do. That is why I was asking the question. What do you want us to do?
We already have taken a lot of time and expended much effort to ensure that competing rights can survive, if you understand my point. It is a perception problem, which I respect totally.
Ms. Rosenfeldt: Are you in agreement with that?
Ms. Illingworth: Go ahead.
Ms. Rosenfeldt: Definitely, it would be a perception perspective. I do not think any of the organizations that work with victims of crime would choose to defy any type of privacy issues afforded to any Canadian, to any individual.
However, there is a strong perception. I think that where we are coming from with this is that we would like to beg of you to know the difference between what the perception is and what the courts are saying, and possibly err sometimes on the side of remembering what some of the victims are going through.
Senator Nolin: I admit that some decisions of the courts should have some media angle to explain why to the general population.
Ms. Rosenfeldt: That is really all we meant. We did not mean to defy anything coming out of the court.
Senator Nolin: Many of us recognize that there is a lack of explanation, which is needed.
Ms. Rosenfeldt: Yes.
Senator Wallace: Thank you very much for that presentation. I am reminded that — as we deal with this issue, and as Senator Nolin pointed out — that we must find a balance between security and protection of the public interest versus privacy. Your presentation really brings that home to me, and the real-word experiences each of you has.
It is easy to get buried in the technology, or as lawyers to be concerned about the words of the act and the regulations, and all of that is important, but one must not forget that it does relate to people.
Our role as parliamentarians is to provide that proper protection to the people we serve, not only for those who have had the misfortune of being victims of crime, but to prevent others from becoming victims. It is those who are not victims today that we must think about, and your presentation and the experiences you have had really bring that point home to me.
As Senator Nolin said, there is a struggle to find a balance between public security and the protection of privacy. Certainly DNA testing is an intrusion into one's privacy. The issue is how far we should allow that to go.
Ms. Rosenfeldt, you said you would not deny anyone their privacy rights. I am sure you mean that, and I would think the same, but as we find out — having heard from other witnesses — how people define their privacy rights varies. You may be prepared to have less stringent protection than others would, and so there is obviously not one test of how far we can go in defining what should be private and what should not.
Ms. Rosenfeldt: It has always been a problem in any legislation. There are two sides: there are the victim and the victim's family on one side, and the offender and the offender's family and friends on the other. It is always a difficult situation when you are dealing with human beings because there are human beings on the victim's side and on the offender's side, no matter what the crime, no matter which way you slice it.
It always brings to the forefront in any type of legislation — whether it is criminals profiting from crime, or the MPI — the clash between victims and offenders and the way our system has evolved and must respond while respecting both sides. I can totally appreciate that sometimes it is a very difficult situation to be in.
Then you hear from other people, such as the Privacy Commissioner, lawyers, criminologists. In universities today those people are still educated into the criminal justice system, meaning they are studying the criminals and their rights. There is very little in education relating to victims.
It is difficult. I can appreciate where it would be difficult for any member the House of Commons or the Senate who has to make decisions on this.
Going back to the statement, we are just asking you to take a look at what we are saying. It does not necessarily always have to be a legal infringement upon anybody. That is all we are saying. That is why it is important for victims and victims' organizations to come forward and bring that piece.
For example, we talked about the Clifford Olson case. I will talk about two issues here. It seems to me that the issue of taking a person's DNA at the time of charge has almost fallen under the table somewhere. In my particular case, Clifford Olson travelled on, right after being charged, to Alberta, where he abducted and sexual assaulted a 14-year-old boy.
I will not go into a lot of it, but in the end, upon arrest, there were seven outstanding charges before the courts. They were all stayed before the courts, so that is where they stayed, and these were all young people. There were buggery charges, sexual assault charges, boys, girls, it really did not matter. He was a monster out there. Eventually, in the end, there were 11 children — possibly more — that he pled guilty to, whose lives were taken.
My son was the third child, which I did not know in the beginning. My husband and I raised an awful lot of questions. He was one of the children treated as a runaway, where they said, "Oh, come on, it is his age."
There was a lack of education back then. Had there been DNA technology at the time — this was not a new thing for Clifford Olson — he could have been caught before my son was murdered.
I really beg of you to think about situations like that. That is only one. I am only one, but there are many others. There is the Paul Bernardo case; it is the same thing. The Priscilla de Villiers case, it goes on and on. We all have our own stories, any victim who has stood up and asked these questions.
They are all kind of sad, but please take into consideration the reality of what we are talking about. We are talking about possibly saving human lives. Who knows, maybe my son would have been heading up the DNA data bank today. I do not know, but I just ask you that on behalf of myself and my son.
Senator Wallace: Our role is to do everything we possibly can as parliamentarians developing these rules and laws to allow as few people as possible to become victims. That is what we just cannot forget.
Hearing your presentation, it seems to me that the parallels between fingerprinting and DNA analysis are very close. It is your suggestion that DNA samples would be taken at the time of arrest? It seems to me you are paralleling fingerprinting. Would you tend to see them in the same light? Do you see a difference between them as techniques of identification or should they be treated the same?
Ms. Rosenfeldt: Probably treated the same.
Senator Wallace: Thank you very much.
Ms. Rosenfeldt: Can you answer that, Ms. Illingworth?
Ms. Illingworth: I heard a Crown attorney speaking recently — you have probably seen him before — Terry Cooper. He said that in many instances when there are not indictable charges against someone, when it is a summary conviction offence, fingerprints are not taken. These are still relatively serious offences, such as exposing yourself in public, and those can lead down the road to more serious sexual offences against others.
I would agree with Ms. Rosenfeldt that fingerprinting needs to happen more often in Canada, as well as taking DNA samples sooner.
Senator Wallace: Thank you very much for that.
Senator Nolin: When you say "sooner," what do you mean? At arrest? At the time of charge?
Ms. Illingworth: Yes, as we said in our presentation.
Senator Milne: Thank you to Senator Nolin for drawing to our attention your husband's passing; my condolences as well.
Ms. Rosenfeldt: Thank you, senator.
Senator Milne: If you had been here listening over the last couple of days, you would realize that there is quite a bit of sympathy around this table for a missing persons index. One of my grave concerns is not only protecting the right to privacy of criminals but also protecting your right to privacy if we start taking DNA from families to identify victims. We have heard conflicting evidence before us about how carefully the DNA profile and the person's identity are separated by firewalls in the index. However, if those samples are not destroyed, and the courts have said they are not, then what is in place to protect you or your families from the potential of future charges?
Ms. Rosenfeldt: You raise an interesting point. I fully support the ombudsman's recommendation and I would recommend that there be another party involved, whether that be the current RCMP advisory committee that oversees everything happening to date.
However, you raised a good point that most victims of crime have had a loved one that is long-term missing. I can name children who went missing in the 1980s who are still missing, many of whom are from out West. Their families live forever in the sad reality that their loved one is dead or was abducted and raised by someone else.
On a personal note, when issues began to arise in respect of a national missing persons index, we began to receive letters from a native women's organization that started the Highway of Tears, and others. I had a cousin who was 19 years of age when she was murdered in Barry, Ontario, in about 1972. We are years later and I have asked the family whether they want our organization to delve into this and take the case to the Ontario police, who have been looking at cold cases. The family struggled with the idea of that happening after all these years because they were afraid that it would bring back all their pain. Their daughter was found bound to a tree but all that remained were her bones. The perpetrator was never found. The difference between what happened in my family and their family is that the perpetrator who did that to their daughter is out there; and how many others did he do this to? That is the respect we need to have. Those are some of the problems that can be faced by victims of long-term missing persons. Most families would be more than pleased to do anything to help me locate missing persons, no matter how long it has been. I raise that in relation to your concerns and to let the committee know why I would strongly suggest that such an index be monitored by the advisory committee.
I do not think we need anyone else involved in unsolved missing persons cases other than police who know how to handle them. Forgive me for saying this, but many people are uneducated in that area other than those who work within the justice system, such as police. That is why I would feel very comfortable if it stayed within the confines of the RCMP missing children data bank. I say that while thinking we will have it some day. It will happen.
Senator Milne: Thank you. I feel deeply for what you have gone through, but my concerns are, perhaps, for future generations. If the DNA profile that you voluntarily give to try to identify future remains that might be found remains in the DNA data bank, perhaps your grandchild might be found guilty of some crime through this familial search that it may narrow down to your particular family, because your DNA is in the bank.
Ms. Rosenfeldt: So be it. If someone in my family has committed a crime, so be it. I do not understand that. I hear what you are saying, but that is my attitude.
Ms. Dion: If I may, we need to separate out the issues. Are these the questions: Do we need a DNA data bank for missing and unidentified human remains? What are the privacy issues? What policies are in place to ensure that the sample is destroyed? Those are separate things, because the destruction of samples will go into the other indices that are part of the DNA data bank. Those issues can be addressed but they need to remain separate. I will call it an administrative aspect of the DNA data bank, but perhaps it is more important than that. If we looked at the issues separately, those kinds of destruction issues could be addressed better.
Senator Milne: I understand. As the ombudsman before you said, you are talking about possibly keeping three different streams of DNA: one is the victim's, one is a current sample, and the other is that of the family searching for their missing person. The last one would be in the missing persons index. What firewalls should be set up between those, or are you advocating for no firewalls?
Ms. Dion: It is my personal position that there should be firewalls between the missing person's DNA and the DNA in the Convicted Offender Index. I am a little less rigid on that when it comes to doing the comparison against the Crime Scene Index, because it could be that the missing person is a victim whose DNA is at the scene. I would advocate for doing that comparison.
The Convicted Offender Index needs to be kept separate. By the same token, once an unidentified person is identified, there is nothing to prevent police from pulling their fingerprints and taking a look at whether they have other convictions, which might not require going through a DNA data bank after the person has been identified.
Senator Baker: I want to congratulate you on your presentation. I think the majority of people watching the committee hearings on television would agree with your opinions expressed here today. Recently, we passed a law in Parliament on the taking of bodily samples as it relates to drug-impaired driving.
That has not yet been tested in case law. However, I imagine when it is, the question will be whether it will be saved by section 1 of the Charter, that is, when your Charter rights are violated, perhaps they are violated for the common good, which is justified in a free and democratic society.
I would like you to clarify your suggestion about the taking of DNA when someone is arrested. Our existing law is the Identification of Criminals Act. Under that law, not only indictable offences but also relatively serious summary conviction offences, called hybrid offences, are considered indictable offences for the purpose of the Identification of Criminals Act. If the person is found innocent, the charges are dropped or there is a judicial stay, then the person may apply to remove the offence from their criminal record, and it is removed. Are you suggesting the same thing?
If you were charged today, your fingerprints were taken, your picture was taken, and a DNA sample was taken, if you were found innocent or the charges were dropped, could you then apply to have those records expunged?
Ms. Illingworth: Yes, that is what we are saying in our brief to you this morning. We are not even suggesting that you would need to apply. Perhaps the legislation should be amended to ensure that that occurs in those instances. I know that is not currently what is done in the U.K. where they keep those records forever. However, in Scotland, when people are found innocent or their charges are dropped, their samples are not kept within the data bank.
The Chair: It may be worth noting that the English system to which you refer has been overturned by the European Court of Human Rights. Therefore, it is not only a theoretical discussion around this table about the balancing of human rights. Other jurisdictions are wrestling with this precise issue.
Lord knows, everyone's sympathies lie with you. Our job is to try to set down in words, black on white, what we think will offer the greatest measure of justice and the least measure of abuse. It will not be easy.
Senator Joyal: I do not want to enter into a legal discussion. As you said, we will be the illustration of what you have described as too much "professionalizing" of the justice system and not being sensitive enough to the plight of victims. That is not the purpose of your testimony this morning.
As you know, the English court made distinctions in keeping the profile, especially for cases where the person was not previously found guilty of any crime. As long as people are not found guilty of anything, they are presumed innocent. That is the fundamental principle of justice. I am sure you agree with that principle. That is where the court makes some distinction between ordering that samples be given and where the court cannot order that the sample be given at that stage of the procedure.
Ms. Illingworth: I believe that ruling was that the samples can be taken, but they cannot be kept when someone is found not guilty. Our organization is in agreement with that decision. Samples should be taken upon arrest, but not kept in the data bank if someone is found innocent or the charges are dropped and the proceedings against them discontinued.
The Chair: Have you had occasion to look into the general question of ever having law enforcement or comparable agencies remove anything from a file once they have it?
That sounds like a frivolous question, but it is not. I have raised it in a number of different contexts with a number of different agencies. I have not yet received a clear answer from most of them.
Ms. Rosenfeldt: It is quite difficult. I appreciate everything that each of you has said. However, as the ombudsman said, we are in a Catch-22 situation here. Which comes first, the enactment of the MPI? It has been consulted and talked about for the past six or seven years now. Everyone comes back saying they agree with it in principle.
However, I hear clearly from honourable senators here that you are still struggling with a number of issues. I do not know how to respond to structure and some of the technology involved. That is not my issue. I come here only to tell what should be. I can only talk about what I know best. I do not understand everything about the manner in which all of this should be laid out, including privacy. I can only tell you from my point of view and the many people with whom I have worked through the years how important this is.
It would help if you could recommend strongly that this be prioritized for further discussions. Maybe that would give us a chance as well. You are struggling with many issues. An indication that this is a priority would have us all online trying to get more information to address a number of your valid concerns.
The Chair: It is your job to come here and tell us what you think should be done. Our job is to figure out whether and how it can be done. That is fine.
Ms. Rosenfeldt: Yes, then we would ask you please to prioritize this and we can get on with the business of trying to figure out how it will work.
Ms. Dion: I have been working with missing people and trying to make matches with unidentified found remains for approximately six years now. In my experience, you have to take into account that families who suspect their missing loved ones may have left voluntarily or left to avoid criminal charges will not volunteer their DNA for inclusion into a missing persons data bank.
In theory, all missing people should be in the data bank, but families will self-select. Privacy is still a major issue, but families self-select even in regard to whether they will report to police that their loved one has disappeared. That does not take care of any privacy issues, but keep in mind that not everyone who has a missing loved one will turn to the DNA data bank.
Senator Campbell: I have to tell you that EU human rights decisions rate somewhere behind the National Post in my daily reading.
We have to go back to where we are supposed to be looking. One of the issues we are examining is a missing persons data bank. Please be assured that the scientific basis to firewall this exists. Some people think all police time is spent running around looking at familial DNA and coming up with suspects. I can assure you that is the last thing they are doing. DNA and fingerprints are no different except that they are different technologies.
No one would argue — or maybe they would given the EU situation — that if I am charged with an indictable offence you will take my fingerprints. I can tell you unquestionably that those fingerprints will go into the bank that day. They will be entered and compared against any hits we are looking for.
Is that any different than what we are talking about with DNA? I do not believe my prints should be put into that bank and should be compared against everything out there. My prints should be compared against any evidence involving the case in which I am charged. Once I am convicted, then they go into that bank for general use. I believe DNA should fall under the same guidelines.
The missing persons index is to identify people who have gone missing, who may have been found murdered, who may have been found as forensic evidence at a scene or who are being sought by families. We need to get back to the focus here. We are wandering all over the country on this thing and doing a lot of "what ifs" with regard to the index.
We have heard clearly that these witnesses believe we should have that index. We have heard clearly that we do not know why we do not have an index. I suggest that if we keep doing the "what ifs," we will never get to that index.
Ms. Dion: I would like to add something.
Senator Milne: Can we all give our closing arguments?
The Chair: We all have strong convictions and strong sympathies on this matter. However, the committee as a body has not reached its conclusions. What I say does not mean we will not agree with Senator Campbell in the end, but the committee has not sat down as a body to decide where it wants to go on this.
No, I do not think we have time for everyone to give a closing argument, but Ms. Dion wanted to say something.
Ms. Dion: Senator Campbell may be able to contribute more to what I am about to say. I understand that police in Canada are very good at identifying unidentified found human remains.
I have a small table at home where I keep records. Unidentified found remains are identified within 39 days on average in the province of Ontario. This is not a rigorous sample. There are cases that fall outside of that average. I would suggest those are anomalies where there is a missed record or something takes the victim outside the area where they are known.
Frequently, the cause of death is either suicide, natural or accidental when an unidentified body is found. The overwhelming majority are not of a criminal nature. I think they will be solved rather quickly. The legislation is both to relieve the families and to deal with the anomalies that occur.
The Chair: Thank you for making that point. It was in your submission as well.
For what it is worth, I can tell you that I and a number of senators were particularly struck when the head of the National DNA Data Bank was here testifying about the difficulties involved with the ghastly case of the feet found in British Columbia. They are stuck on this case, and this case plays directly into what you are requesting.
Honourable senators, I want to thank you very much and I want to thank our witnesses. It has been an extremely helpful session. We are grateful to you.
(The committee adjourned.)