Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for March 31, 2010
OTTAWA, Wednesday, March 31, 2010
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:22 p.m. to examine 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.
[Translation]
We continue our study of the provisions and operation of the DNA Identification Act. Today, we have the pleasure to welcome as a witness, Mr. Vincenzo Rondinelli, lawyer, who represents the Criminal Lawyers' Association.
[English]
Welcome to the Senate, Mr. Rondinelli. I think you understand how we proceed. We ask you to make an opening statement, and then we ask you questions. The floor is yours.
Vincenzo Rondinelli, Lawyer, Criminal Lawyers' Association: On behalf of the Criminal Lawyers' Association, I thank you for the invitation to speak today on this important legislation. By way of background, our organization represents about 1,000 defence lawyers across Canada. Part of our mandate is to provide submissions to committees like this one. We also sit in advisory capacities with the judiciary and Crown attorneys. Like Crown attorneys, we are at the front line of the criminal justice system, so legislation like this act has a great impact on our members.
I have provided written submissions that I understand have been circulated, as well as the paper I delivered at the DNA conference at Osgoode Hall Law School this past weekend. Those written submissions supplement my opening statement, which I will try to keep brief. As you probably know, when lawyers say ``keep it brief,'' they do not necessarily keep it brief, but I will try.
The Chair: Politicians function that way too. We are familiar with the pattern.
Mr. Rondinelli: One of our main concerns with DNA legislation is the concept of legislation creep. If we look at the history of DNA legislation in Canada, it demonstrates what we call this legislation creep that we hope to stop at some point. In 1995, when the first piece of DNA legislation came out dealing with DNA warrants, the type of offenders that we were looking at and the offences were restricted to the most violent offenders and sexual offences.
Fast-forward to 2000 when the National DNA Data Bank was born, and we see a broader picture of offenders that we decided to capture. We broke offences down into silos: primary designated offences and secondary designated offences. Apart from adding more violent and sex offences to the list, a number of driving offences found their way into the legislation. For example, dangerous operation causing bodily harm and impaired driving causing bodily harm were deemed secondary designated offences.
Most recently, with Bill C-13 a few years ago, a whole slew of new offences were added, mainly because one of the things that the National DNA Data Bank captures is anyone convicted of an offence under indictment that had a punishment of five years or more. Obviously, with these new offences, a large number of offenders have now been added. On top of that addition, a new type of offender was considered, the not criminally responsible due to mental disorder, a group that was never part of the legislation until Bill C-13.
Again, we see this trend of moving from this restricted list. All the arguments were bandied around in the initial days, not only here but in the U.S. as well, in terms of the balance we had to try to strike and the great privacy interests, because we are talking about the government taking what has been called the blueprint of life. Privacy interests must be balanced against crime control, which obviously everyone is interested in as well. Parliament decided to draw the line at dealing with only the most violent and the sexual offenders, and that was happening in the United States as well. The U.S. has now gone completely to the other side, and there are even states that take samples upon arrest.
Clearly, we are seeing the pendulum shift, and we believe that the pendulum has shifted too far to the other side. We say that we should stop the creep. That sounds like a bad public service ad, but look at where the pendulum is. I will leave aside the usual privacy and civil libertarian arguments. You have probably heard other organizations come and speak of those arguments. Again, those concerns have been around since day one of DNA legislation. For the purposes of today, I want to speak more about the practical impact and where the pendulum has swung. We say it has swung too far and wonder if it is having a practical or beneficial impact, if I can put it that way, in crime control.
First, can we handle the expansion? I am sure all of you are aware of the 2007 Auditor General report that spoke about backlogs. I know you have heard from witnesses who have suggested strategies for the future or steps that have been taken to ameliorate the problem. We see that a chronic issue they face in the U.S. is the backlog of these things. If we expand the data bank any further, will we be able to deal with it? We will see. This committee has heard of strategies in place.
That issue relates only to the front end of the National DNA Data Bank: entering the data into the data bank. The other side of the equation is what happens when data is spit out of the data bank, if I can put it that way. As the data bank expands in numbers, there will be a lot more hits. That is how it happens. The main argument is that we want to include more profiles because we want more hits. The problem is, are we able to handle those hits? Who will handle those hits? The responsibility will fall on police officers from various local police forces. Will they be able to deal with that number of hits?
In the U.S., ``unpursued matches,'' as they are called in the U.S., create another chronic problem because of the sheer numbers of such profiles. Those hits sit on some desk, that is, if they are even printed out. It becomes impossible to chase down every one of these hits.
Think of the scenario where there is a hit but it is not acted upon mainly because of lack of resources, and the serial rapist strikes again. Clearly, if police had acted upon that hit, they would have been able to apprehend the serial rapist and prevent additional sexual assaults by that individual. Who is held accountable for that scenario? I am not making it up. That scenario has happened in the U.S. There are a few examples in litigation where that exact scenario has occurred, and the complainants want to hold someone accountable. They have tort claims and negligence claims. In Canada, who will be accountable? Will it be the RCMP who runs the NDDB or will it be the local police force that might have only three people in its division.
I do not foresee any answers to these questions. I am not here to tell you about resources. It is clear that resources will always be an issue. The number of hits that come out of an expanded database will likely pose an issue to at least think about.
The issue comes down to the value proposition of the National DNA Data Bank. What kind of bang for our buck are we getting from the data bank? I look at the experience in other jurisdictions that are bigger or have more experience in this area. I have mentioned the U.S. The U.K., as you have heard, has close to 7 million profiles. They have conducted studies to see if they are receiving good value at this point, because they are expanding and adding a lot of profiles each year. Is the system working?
A recent study found that even though they upload about 650,000 profiles per year, they are only receiving assistance in 1 in 800 criminal cases. When they look at the type of money that is spent in acquiring the profiles, uploading them, maintaining them, et cetera, the cost is equivalent to training and paying 60 new police officers. If you were to ask members of society if they would rather have more police officers on the street watching or more profiles in the data bank, which at the end of the day might not net much assistance, they will likely want the police officers. The numbers do not surprise me. Even statistically, the offenders that are the biggest recidivists are the violent and sexual assault offenders. They have always been at the high end of recidivism. It will not be the profile of the 80-year-old charged with dangerous driving causing bodily harm that will net something at the end of the day.
In looking at the metrics available to us for our data bank, how can we measure the success? The metric that seems to be bandied around is the number of investigations that are aided or assisted by hits at the National DNA Data Bank. The website, as of March 12, 2010, indicates that 989 murder investigations were assisted by the hits. The data bank has a total of 14,435 profiles broken down into different offences. At the end of the day, what does that statement mean? Did the investigations end up in convictions or guilty pleas? What does ``assisted'' mean? This issue is not unique to our country. The U.S. is having that same issue in terms of how they measure assistance with hits.
We have had the data bank for 10 years. There must be better analysis that can be provided to follow these hits to their conclusion. I am here to say: Stop the creep; there is no need.
I will close with a comment about the National DNA Data Bank Advisory Committee. The members are assigned under the supporting regulations for the DNA Identification Act. Government and police have lots of representation on the advisory committee, but there is no defence lawyer representation. The Criminal Lawyers' Association is disheartened by that lack. A defence lawyer can bring a unique perspective to the issues considered by the data bank. We hope that in the future, we will see representation from the defence bar on that committee.
Those are my comments.
The Chair: Thank you. We have a long list of questioners ahead.
Senator Wallace: Mr. Rondinelli, your presentation was good.
You expressed concern and reservation about an expanded use of DNA technology and the legislation that has been enacted over time. You referred to the expansion as legislation creep. The issue we struggle with is to provide as much protection and justice as we can to Canadians and to provide proper crime control. We want to balance that protection against the privacy rights of those from whom the samples are taken. You said that you believe the pendulum has swung too far.
Mr. Rondinelli: Yes.
Senator Wallace: I gather you feel we should stop where we are. I realize that whether we have gone too far is a judgment call for any of us. There is pressure, as you well know, and increased interest among the public for increased use of DNA analysis to continue to solve crimes and to remove the people who commit them.
In the Canadian experience, what can we point to other than opinion to agree with you? Is there any quantitative way that you have approached the issue to determine that view or is it one of opinion and picking out a number of instances that might fit that argument? Is there anything discernible in a quantifiable way to help us determine that the pendulum has gone too far?
Mr. Rondinelli: I do not usually answer questions with questions, but that is the question. I will not come here and say I am against crime control because that is what keeps me employed. When dealing with the National DNA Data Bank and the original balance that was struck, which is the million-dollar question, we are talking about severe privacy interests in terms of crime control. Where is the evidence that the data bank is working? The U.S. is struggling with that question. The U.K. has completed some preliminary studies. At some point, its effectiveness might plateau and go overboard. There is no efficiency to adding all those profiles because it does not make the streets safer. It only adds costs. A reasonable person on the street, apprised of all the facts, can come to a conclusion, except that we do not have all the facts. That is what I am saying. The only metric that shows there is success is the assisted investigation, whatever that vague statement means. That is the point. It has been ten years. If there is data that can be analyzed, we can have more concrete statistics that we can show to Canadians that the data bank is working. If we can show that the more profiles we add, including dangerous driving offenders that then go on to commit sexual assaults, are caught and have gone to jail, then that is fine. From Criminology 101 and a straight statistics point of view, we know that recidivists are the violent offenders for sexual assault and all those offences. Those offenders we capture. I think those offenders are the ones for which the data bank has the most utility. Until we have better statistics, that is what we point to.
Senator Wallace: Serious crimes, the primary designated offences, have been expanded, and circumstances in which taking the sample is mandatory has been extended as well.
Mr. Rondinelli: That is right.
Senator Wallace: Do you have difficulty with any of those offences to which that sampling was extended? Do you feel some of those offences were not serious enough to warrant being included? Also, do you agree, for example, in terms of terrorism, that there may be other offences equally serious that pose as much of a threat to the public, and we should look seriously at this technique to better protect our citizens?
Mr. Rondinelli: I do not have a problem with the offences listed. Since Bill C-13, some offences have been called super-primary, because there is a mandatory list apart from the primary designated offences. I do not have so much of a problem with the offences that are listed. I have an issue with the mandatory taking of samples. I think judicial discretion should always be involved in any process. That issue is a sentencing issue that I have always purported to have issues with, where the discretion is taken away from a judge, because there is always a case, whatever the issue is, that cannot be dealt with because it is mandatory. I do not have a problem with the list itself.
Senator Wallace: Do I take it you do not have a problem with extending it to other serious — however that might be defined — offences? This technique is not to be used for trivial offences.
Mr. Rondinelli: Yes.
Senator Wallace: Justification must be given to show the offence is serious, and then you do not have difficulty with it.
Mr. Rondinelli: No, especially if we swing to the other side, where even in the U.S. and the U.K. they are taking it upon arrest. Here we have individuals who are not even convicted of any crime. That balance has swung too far, at least in our opinion, even though it obviously is happening.
Senator Wallace: You raised the issue of resources and whether sufficient resources are dedicated to DNA forensics. You mentioned the Auditor General's report of 2007 and comments that were made there. As you are probably aware, the government responded to that report in July of 2008. The RCMP followed with an update in May of 2009. The RCMP specifically addressed recommendations in the Auditor General's report, and I understand that over half those recommendations have been addressed. The remainder are under way. As well, the budget of 2010 has committed an additional $14 million over two years toward DNA analysis.
Real progress is being made.
Mr. Rondinelli: Yes.
Senator Wallace: Does that in any way make you give further thought to concerns you had earlier about insufficient resources and, in particular, tying resources back to the Auditor General's report of 2007?
Mr. Rondinelli: Obviously, there is progress. The question is how much it is expanded, and whether the progress will continue in that way. As you know better than I, budgets change in intervals of time and there might be a time when all these profiles come in and cannot be handled for whatever reason. The issue that is not looked at mainly these days is on the other end: When they have hits, what happens with those hits and what are the resources there? Those issues are more difficult to contain because it is not only one arm of the law that deals with a hit. It can come from any jurisdiction in Canada, for that matter. Police resources will be different in different provinces and towns, and I think that difference will pose a real problem.
Senator Runciman: For clarification, what you are saying essentially, with some exceptions, is that in terms of the expansion or creep, as you describe it, of designated offences, your primary concern is lack of resources to deal with that growth of responsibility. If the funds were there, your association does not have any real difficulty, with the number of exceptions that you have highlighted here, with the growth of designations. Am I interpreting your view correctly?
Mr. Rondinelli: I highlighted the practical impact in terms of dollars and cents. We definitely do have an issue in terms of the offences it starts swinging to. As I mentioned, we do not have much of an issue with the serious offences. It is the driving offences we have an issue with. The line was well drawn in the first draft of this type of legislation.
Senator Runciman: I want to touch on several things. You mentioned that the population would be happier to see more police on the streets rather than putting money into a data bank like this one. I was reading a view from the Canadian Association of Chiefs of Police. From their perspective, and I think it is shared by the front-line officers as well, they are looking for even more expansion of included offences. Their view is that many of these offences are precursors to more serious crime. They mentioned trespassing at night and stalking as examples. They have a list of other examples where obviously, from a policing perspective, they take a different view of where the data bank and the legislation should go in terms of expansion of designated offences.
You mentioned the phrase, ``not criminally responsible.'' The Canadian Association of Chiefs of Police takes a position on this issue. They clearly believe that samples should be taken, and I am reading from materials they provided to the government. The person may have committed previous offences that remain unsolved without DNA evidence. There is also the possibility that the accused may reoffend once deemed not to be a danger to society and released from custody.
As a personal experience, there is a forensic unit in Brockville, my hometown, and we had an individual there who was found not criminally responsible for a serious crime and the individual subsequently committed another murder. I am not sure how extensive those kinds of occurrences are, but I can draw upon that one in terms of an incident that occurred in my own community.
Can you expand on your rationale, your view, with respect to why individuals not criminally responsible for serious, heinous crimes should not be required to submit a sample?
Mr. Rondinelli: In terms of not criminally responsible and mental disorder, it is not an area that I practice in primarily, so I cannot speak of having great in-depth knowledge of the area. I mentioned those offenders in terms of the history and the timeline of the legislation to show how the pendulum has shifted, not only in terms of the offences, but now we have captured another category. I was showing how we continue to erode at the original bright line and we have moved on to that category. Even with the NCR situation, it is not so much with the seriousness and the heinous matter of the offence for which they have been found not criminally responsible, whatever the crime was, but the mandatory aspect. Again, as you know, if an individual is found not criminally responsible, sometimes they are sent to Oak Ridge and may never be released, or for long periods of time must stay there for treatment. It should be brought into consideration by a judge to decide whether in this particular individual's situation a DNA sample should be taken.
Senator Runciman: We were given a report earlier in this process entitled DNA Orders Issued in Adult Criminal Court: A National DNA Utilization Study. The report talked about a review of the National DNA Data Bank from 2000 to 2006 for primary designated offences.
A DNA order was issued only in 54.2 per cent of the cases. For secondary designated offences, it was even less; I think it was 16.7 per cent. I am told this number has improved in the last couple of years.
From your perspective from the defence bar, why is this sort of thing happening? Is this oversight by judges and prosecutors, or is there a philosophical disagreement at play here? Are they forgetting to apply the law or actively resisting?
I will give you an example of a case I raised in the Ontario legislature last year. An individual was up for a bail hearing who was charged with two serious violent sexual assaults. DNA evidence linked the accused to one of the sexual assaults, yet the judge released the individual into his father's home. The Crown did not appeal the bail release decision. Subsequently, that individual was charged with the murder of two women in a home abutting his father's.
Again, one wonders how the judiciary and the Crown approach these kinds of issues and what kind of weight they give to DNA evidence in situations like these. Obviously, it varies from judge to judge and Crown to Crown, but I think there can be a higher authority, if you will, in terms of how judgments are applied in situations like these.
I wonder what your experience has been with respect to how these decisions are taken.
Mr. Rondinelli: I think the early experience was an issue of a learning curve; it was an education issue more than anything. It had nothing to do with resistance from any of the parties in the courtroom. If you had gone to any busy courtroom in Toronto, when there was hustle and bustle in the early days of the National DNA Data Bank, no one was thinking about what happens after a person pleads or is found guilty. The thinking was in terms of dealing with the next case and so forth.
We have come a long way. There has been a continuing legal education, both with the judiciary at the law societies, as a whole, and the Crowns, in their briefs, to ensure they have the National DNA Data Bank order as part of a checklist they go through. Even when entering pleas, they know if that will be part of the plea or not.
The early days were due to growing pains. It was good to highlight those issues because they emphasized that everyone should be on the same track. However, I think we are pretty much there; everyone is at least thinking of whether various convictions fall under the National DNA Data Bank scheme. These days, at least in the busy jurisdictions, you will see the judge grab the Criminal Code to see if it is part of a list, or they will receive help from counsel.
I think those days are over and I think everyone is on the same page in terms of at least considering the issue.
Senator Runciman: We have talked about a missing persons index and I am wondering whether your association has a view on that index.
Mr. Rondinelli: That is an area that I cannot assist with, at least today.
[Translation]
Senator Carignan: I am a lawyer, and for a criminal lawyer or a law professor, the worst thing that can happen is for an innocent to be declared guilty of an offence he did not commit.
As a defence lawyer, how can we improve the bank to avoid convicting innocents?
[English]
Mr. Rondinelli: That is a good point. There have been interesting cases in the U.S. A lot of experience comes from the States because they have had a longer experience with this evidence and have the sheer numbers to deal with it. They have found some individuals who were wrongfully convicted due to DNA evidence. Usually, we hear that DNA evidence is what exonerates someone down the road, but for whatever reasons, they were wrongfully convicted with DNA.
With the data bank, specifically, and in terms of preventing or at least minimizing the risk of a wrongful conviction arising from the National DNA Data Bank, the only possibility of there being a wrongful conviction is where there is no evidence other than a ``cold hit,'' if I can put it that way. In other words, the only evidence that they have is from a Crime Scene Index and the National DNA Data Bank that matches the Convicted Offenders Index. They go to trial and, on the strength of that hit, the individual is convicted.
That has happened in Canada and the in U.S., as well. Appellate courts in the U.S. have found that a conviction based on a cold hit alone is sufficient.
The question then becomes: Can there be anything wrong with that cold hit? The paper I delivered at the conference on Saturday discusses one issue in terms of false hits that I say are potential in cases of data banks, and the paper outlines what sort of analysis or research we should do. Due to time, I will not go through that information, but it is outlined in the paper.
I am not a statistician, but there is this thing called a DNA data bank paradox, or database paradox. As the numbers increase in a database, the chances of a false hit increase as well. For example, in this room, there are 50 of us. Let us say my DNA profile is Rondinelli and this is the database. We will run that profile, and it will not hit on anyone in here. However, if we expand the database and include the phone book for City of Ottawa or Ontario, then run Rondinelli, you will probably have five hits because there are relatives of mine such as my parents, my sister and so forth.
The same thing happens in a database. You have to remember we are only searching for a limited number of loci along the strand of a DNA. We are not searching the whole DNA strand. We cannot because the technology is not there. Until that is possible, there will always be a chance of a false hit, whether it is nine, ten or maybe even thirteen. Even though the numbers seem astronomical, in the U.S., they found that, even at nine and ten, there have been a number of false hits.
I say that is something we should look at in terms of whether the database is producing any of these false hits.
[Translation]
Senator Carignan: We talk about a partial match, so it is an investigative tool that the police can use with other tools, but how do you explain this partial match? It maybe does not guarantee the conviction, but it is still useful for the investigation?
[English]
Mr. Rondinelli: For sure; I am saying the danger lies in cases where that is all there is and they cannot find anything else to tie the individual to the case. That is the only thing I can think of off the top of my head. There are obviously other issues with DNA where miscarriages of justice are possible, such as something being planted at a scene, et cetera. However, the cold hit issue is the only one specifically related to the data bank and that arises from the data bank.
[Translation]
The Chair: May I ask a supplementary?
Senator Carignan: Yes
[English]
The Chair: For the purposes of this committee, what conclusions do you suggest we draw from that, or what recommendations do you want to see us make as a result of that? The material you have provided is fascinating, but I am not sure what you suggest we do with it.
Senator Baker: It should not be the only evidence.
Senator Joyal: That is what it says on page 3.
The Chair: Just that; namely that we should advise that this should not be the only evidence?
Mr. Rondinelli: I am thinking in terms of the questions I pose at the end of the paper I presented at the panel. Again, it is part and parcel of that value-added that I was talking about in terms of the research. We have 10 years of experience now with the database. I think we are underutilizing the information there in terms of, first, the value of the proposition — that is, whether it is working in terms of leading to convictions; and second, if there is potential for these miscarriages of justice due to hits.
For example, Arizona and a couple of other states that I mentioned in the paper at the conference opened up their database and ran searches to see if there are profiles that will hit at four, six, nine, or ten loci. If they have a hit, they report it. The numbers are substantial, and that should cause concern. If those problems are not in our data bank, that is great, but we should at least check to see if they are. I think whatever they did in Arizona, and in the other states where they ran these checks to see if there are matches between profiles, at six or nine loci, or whatever the number is, that would be beneficial for the data bank.
Again, we are all for a data bank that works. We are not here to say that data banks should not exist, but we are hoping there will be checks and balances.
[Translation]
Senator Carignan: The police told us that they did not have numbers on that, but they often hear that when there is DNA evidence in a case, the accused often pleads guilty after disclosure, so that it incites the accused to plead guilty to a lesser offence.
In your practice, have you seen that, when there is DNA evidence, people plead guilty more often, or you, in your practice, does this type of evidence change your strategy in that case?
[English]
Mr. Rondinelli: It depends on the circumstances. Sometimes, DNA is an issue that one cannot get around in a case, and it will help resolve the case quickly. That is in everyone's benefit, even the client's, in terms of not having to run a long trial; or defence counsel's time because they can go on to another file.
I have told my colleagues that in terms of the cold hits, there are questions they can ask in terms of disclosure at the front end to see exactly what is happening. Usually, defence counsel will look at it and say that they have a hit from the data bank and will not have anything to do anymore. Sometimes, however, they have clients who say, I do not care where they got it from, it was not me.
Sometimes defence counsel has to dig deeper. It depends on the facts, but I do not think DNA ends the file, if I can put it that way.
[Translation]
Senator Boisvenu: Welcome, Mr. Rondinelli. I will mostly ask you questions about your submissions. I know that you represent mainly defence lawyers. I will make a comment in the same vein as Senator Wallace. I understand that your association mainly represents defence lawyers.
[English]
Mr. Rondinelli: Yes.
[Translation]
Senator Boisvenu: I would say that you have done an excellent work, because the role of a defence lawyer is to create a doubt, without going too far in his statements and you have created a lot of doubt in this document. I would like to ask you a few questions about those doubts.
On page 2, you say ``we think that nothing or almost nothing prevents, right now, from applying the DNA Identification Act to all Canadians.'' Are you saying now that whether a Canadian is guilty or not, the law would apply better today?
[English]
Mr. Rondinelli: I am not sure; I did not understand the question.
[Translation]
Senator Boisvenu: You say in your document that you think that nothing or almost nothing prevents applying the DNA Identification Act to all Canadians. This is written in black and white. Does it mean that today, this Act could apply to Canadians who have not been ``sentenced'' nor ``convicted''?
[English]
Mr. Rondinelli: I do not have it.
Senator Baker: I think it is a misprint. I read it as well.
Senator Joyal: I have it in front of me.
[Translation]
Senator Boisvenu: I will continue on this subject, because it is important for the credibility of the document. We have here a document containing statements, but those statements are not based on evidence.
The Chair: You do not have to attack the credibility of the document to ask questions to the witness about what he means. I think that is what we should do right now, ask him to explain what he means.
[English]
Mr. Rondinelli: In terms, again, of dealing with the legislation creep, as we go forward, there seems to be nothing to prevent it from going even further, which is what has happened since 1995 to the present date. In terms of where we are going, the legislation creep continues to catch more, and potentially can include all, Canadians.
[Translation]
Senator Boisvenu: So, it would have been more precise to say: ``could apply.''
[English]
Mr. Rondinelli: Sure.
[Translation]
Senator Boisvenu: In another area, on page 4, you say that critics state that those numbers show that the privacy violations in that area are not justified. Would it have been interesting to see in your document some statistics about the number of complaints presented by citizens who have felt adversely affected by a violation of their privacy?
[English]
Mr. Rondinelli: I am waiting for the last part.
The Chair: You say that critics say the figures prove the intrusion into privacy is unjustified.
Mr. Rondinelli: Yes.
The Chair: You do not offer any numbers; maybe you do not have them.
Mr. Rondinelli: Who the critics are?
The Chair: No, any numbers about how many people think this expansion is unjustified.
Mr. Rondinelli: This is going on the basis of the article and some of the research that was conducted in the U.K. Again, that type of research is lacking here in Canada other than the investigations assisted by a hit. The proposition that I am trying to make is that we should go further to see exactly what the assistance means. They have attempted to do that in the U.K.
Senator Baker: First, on your question of the creep, we show deference to the decision of the Supreme Court of Canada. I am sure you will agree. A couple of years ago, they addressed the DNA Identification Act in some detail in the case called R. v. Jackpine. It concerns a constitutional question in which they looked at the DNA Identification Act.
I am reading from paragraph 33 of R. v. Jackpine, Supreme Court of Canada, 2006, Carswell, Ontario:
Mr. Rodgers strongly disputes that any such analogy is appropriate, arguing that the potential impact on the privacy of the individual is far more significant with DNA sampling than with fingerprinting
The Supreme Court of Canada then goes on to say that, in fact, the DNA sample is simply a modern version of fingerprinting.
First, who is the lawyer representing Mr. Rodgers?
Mr. Rondinelli: I was one of them.
Senator Baker: You were. That is what I thought. You put forward a strong argument concerning, I suppose, the creep, as such.
However, the Supreme Court of Canada said firmly at paragraph 38, the final sentence:
The DNA Identification Act is a modern supplement to the Identification of Criminals Act . . .which provides as follows. . .
Then it is fingerprinting, et cetera.
Throughout that judgment, the Supreme Court of Canada constantly — repeatedly — references DNA samples as being the modern edition of fingerprinting.
Do you concede then that the Supreme Court of Canada has ruled on this issue and has come down squarely in favour of expanding the DNA Identification Act?
Mr. Rondinelli: First —
Senator Baker: Before you go on, congratulations. Your arguments were excellent.
Mr. Rondinelli: You end with that comment. You sound like the Court of Appeal just before they dismiss my appeal: Great submissions. Thanks.
Yes, I was co-counsel in the Rodgers case. Mr. Jackpine did not make it to the Supreme Court. For some reason he did not appeal.
If you read it in conjunction with R v. R.C. — which was a case before that one, which dealt with a young person — Justice Fish in that case stressed how different DNA is from fingerprints. I will not debate here whether DNA is the new fingerprint or not. Clearly it is the new identification. There is no doubt. Again, that is not the issue we have. The issue is in terms of how far it goes. You must remember that Rodgers is sort of static in time. Whatever they said about the DNA Identification Act, at least in my opinion, does not mean that view holds for whatever happens to the DNA Identification Act.
For example, one issue the Crown put forth is not to worry about this ex parte issue that they raise because they say it would be constitutional without having any judicial authorization. Look at the States: It is automatic. Obviously there are some super primary designated offences now that are mandatory.
The Supreme Court said the issue has been raised but it is not before us because we have judicial authorization, so we will not deal with the issue. That does not mean they will not deal with it when it happens, but they did not deal with it. They did not give it carte blanche by saying: you are right, do whatever you want with the National DNA Data Bank. It does not go as far as saying, we should include every person convicted or every arrestee and they will deal with every new category as it comes up.
Senator Baker: They did not go that far, but they made a firm declaration.
Mr. Rondinelli: It was split four to three.
Senator Baker: It was split four to three, but you lost.
Mr. Rondinelli: I did.
Senator Baker: We are preparing a report of the DNA Identification Act. Let me ask you which situation is the least egregious to you: to make the DNA order mandatory for all primary and secondary offences — or to make it mandatory for all primary designated offences? What are your thoughts on that issue?
Mr. Rondinelli: If those are my only two choices, obviously I would take only primary. Ideally, there should be discretion on any of the offences. Between the two, obviously I think that primary — or the super primary — should stay where it is.
It has not been tested in court. Obviously, you have heard a lot about the young offender in the S.C. or D.B. case — whatever it is called these days. It came on the side that they should have discretion. The same litigation has not happened on the adult side of things. I know some cases are in the pipeline, so we will see how they deal with it, but I think it should stay where it is.
Senator Baker: Is that upon charge, upon conviction, or secondary and primary or only primary? You say that the less egregious of those choices is to make it mandatory for all primary designated offences. Right now it is not, but that is the least egregious to you.
Concerning forfeiture of offence-related property, when we look at the primary and secondary designated offences, we see not only the Criminal Code in play, but other acts of Parliament like the Controlled Drugs and Substances Act.
Mr. Rondinelli: Yes.
Senator Baker: However, major serious offences are under the Criminal Code.
Mr. Rondinelli: Yes.
Senator Baker: If someone has a grow operation in their house,there is discretion under the Controlled Drugs and Substances Act, CDSA, whether that person loses their house to the Crown.
Mr. Rondinelli: Correct.
Senator Baker: The suggestion may be made — when we go in camera to discuss this matter — that perhaps we should bring in a recommendation that in the commission of all primary designated offences, upon conviction, a mandatory forfeiture order issue for all properties that were related in any way to the offence. Do you have any immediate concerns about that recommendation?
Mr. Rondinelli: That sounds like it is going beyond DNA.
Senator Baker: It is all DNA primary designated offence convictions.
Mr. Rondinelli: From there, you would have an order issued. Obviously my knee-jerk reflex would be, no, it is not a good idea, but I would have to think further to have more of a principled basis.
The Chair: Senator Baker, you are talking categories of offences here, but I am not sure that forfeiture of property directly comes under the DNA Identification Act. We are running along in time.
Senator Baker: What I was thinking about is if an offence were committed, say in a home or on a farm or anywhere in which that facility was used in relation to the commission of the offence, that a forfeiture order issue. Chair, I was simply responding to a request made by some of the government members concerning the cost of the DNA act.
The Chair: A self-financing program? Thank you.
Senator Joyal: Welcome, Mr. Rondinelli. My first question relates to page 11 of your document prepared for this sitting, Wednesday, March 31, in relation to exoneration.
Mr. Rondinelli: Yes.
Senator Joyal: You propose that access should be granted for exoneration purposes.
Mr. Rondinelli: Yes.
Senator Joyal: I read the paragraph explaining your proposal. Can you tell us on what legal basis you justify or explain your recommendation? Is it on the basis of past experience?
Mr. Rondinelli: As stated in the DNA Identification Act and all the appellate cases that came about, the purpose of the National DNA Data Bank is not only to convict the guilty but also to help exonerate the innocent, and I think that act does not go far enough to assisting that exoneration benefit.
As an example, most exonerations are in wrongful convictions that are looked at by the Innocence Project, and the cases are dated. The same is true in the U.S. If they are lucky enough to find an item to test, they will likely have only a partial DNA profile due to whatever conditions the item was exposed to.
When preparing a file for the minister to show that there has been a miscarriage of justice, it obviously assists if they are able to run the sample that was used to convict a client against the Convicted Offenders Index to see if something matches. However, there is currently no access to the data bank. It is restricted, and for a good reason, in terms of how it can be used.
I think there should be more exploration of how an Innocence Project, for example, can use the data bank for their assistance. I point out that New Jersey is an example of a jurisdiction that assists in the Innocence Project type of cases.
Senator Joyal: Do you suggest a provision in the act to ensure that, in certain circumstances, a person who has been found guilty can have access to the data bank?
Mr. Rondinelli: Yes, or at least I recommend studying the issue further to see how it can assist in an Innocence Project, or how it is being used in the U.S. to allow that possibility. It is currently a criminal offence to try to access the bank for any purpose other than what it is used for now.
Senator Joyal: On page 5 of the document that you presented to the Toronto symposium on March 27, on the issue of partial matches you make a number of recommendations. Do any of those recommendations have to be spelled out in the act or in another statutory form to protect the presumption of innocence? We want to ensure that we give the accused person the protection of the presumption of innocence as much as possible. When there is a partial match, a person cannot totally prove his or her innocence if the system does not provide a way to give more certainty.
Mr. Rondinelli: Yes.
Senator Joyal: Have you any recommendations for us on developing the data bank? As you said, the more we develop the bank, the greater risk there is of partial matches.
Mr. Rondinelli: The recommendation goes to ensuring the integrity of the bank, which I think we all agree is what we want. We want the integrity of the bank to be appropriate if we are to rely on it, especially in cold-hit type cases. The issue is more of an audit question in terms of what is searched.
The questions I posed were directed to defence counsel in terms of what kind of disclosure I think they should ask for. There are important questions to ask in terms of what kind of examination should be conducted of the data bank on a straight statistics basis. If unrelated profiles are being hit upon, there should be an audit trail of those hits.
I do not know how to word it, but I would incorporate a different audit process of the data bank than is happening now to ensure that partial hits are catalogued. They may not exist, but we want to ensure the integrity of the data bank.
Senator Joyal: Can we link that recommendation with the one you make in the conclusion that the personnel of the data bank should be expected to testify in court?
Mr. Rondinelli: I hope that will happen in the future. We only have to find the right case. If I had the right case, I would definitely try to open up the black box.
Senator Joyal: How do you prove, in today's legal context, that the result from the data bank came from a contaminated sample?
Mr. Rondinelli: That question is different. There are other ways to uncover contamination on a straight National DNA Data Bank question. I am talking about pure coincidence in terms of a partial match hitting where there can be others. I think they should be separate. This situation is not novel to us. This situation is happening in the U.S. in cases they have been able to open up the black box. I mention the case in Arizona and two other states in the paper.
For now the FBI has resisted all questions regarding CODIS, but we will see how that resistance goes in the future. However, there is a movement afoot down south.
Senator Joyal: Will the objective of justice be better served if they are allowed to testify in court when there is a serious doubt about the reliability of the result: for instance, in terms of a partial match or other circumstances of crime scenes that raise specific circumstances whereby there is a doubt that the sample was good?
Mr. Rondinelli: Certainly; we have experts who say that breathalyzer machines are working properly. Why not have a statistician say, as they have in the States, what happens and what can happen, at least to alert the jury to it.
Senator Lang: I have one general question. You represent your organization and are working with this issue directly or indirectly on a day-to-day basis. My question is about the National DNA Data Bank itself and the protocols that are in place. We have heard evidence of what they do. We have been assured that, to the best of their ability, if protocols are followed, there is no possibility of contamination, and that we can be satisfied that the sample that is produced will be valid.
Could you comment?
Mr. Rondinelli: It is hard to give a general statement on DNA, because DNA evidence in court runs the gamut in terms of contamination, statistics being an issue and so forth. On the National DNA Data Bank, we usually hear that they have the hit from the data bank then obtain a DNA warrant for a fresh sample from the accused, which is used in court. The sample is brought to court wrapped in a red bow and it is perfect because there is no contamination.
That approach helps in terms of weeding out if the issue of contamination. If samples do not match, there was clearly something wrong and the issue could be contamination. The problem with that approach, as I mention in the paper, is that experts say, if there is a problem with the cold hit, there will be that same problem with the new sample, because they should expect to have the coincidental match that they have from the data bank from the clean sample as well. Even though the sample is then brought into court, it will still be faced with the same problem that existed in the data bank. That is why the issue goes back to the integrity of the data bank.
If we are assured that we do not have these mismatches, or matches due to straight statistics in the data bank, then we are happy that the integrity of the data bank is in place and the sample coming into court will be a good sample. It is a straight numbers game, it seems. All we ask for is the numbers proper, or what is taking place in that black box.
Senator Lang: I think we all share the same objective. We want to ensure things are done properly, and the process is followed properly so that at the end of the day, someone is not falsely accused with false evidence.
On another area, in the question you brought up with the FBI, I think you referred to CODIS.
Mr. Rondinelli: CODIS is their national database. Each state has its own database, and then it links up to the granddaddy of the United States and that is called CODIS.
Senator Lang: If we were asked on a regular basis by the authorities to do that, do we have any idea what it would cost and what it would entail?
Mr. Rondinelli: No; I would be guessing and speculating. Clearly, it has been done in at least three states. How they did it, I am not entirely clear. The number of profiles we have in our database comes nowhere near to many of the states. Already, the databases we check to make sure no two individuals are mismatched in a database I think will work quickly, but I cannot give you a dollar estimate in terms of costs. If we have that challenge one day, I guess we will have a Crown tell us how much it will cost.
The Chair: One issue that crops up from time to time is the matter of removal of profiles from the data bank. There have been suggestions, notably in Madam Justice Cohen's decision, but others as well, that all is not as efficient as it ought to be in that system.
Have you had any experience, for example, with what happens to profiles of your clients whose conviction is overturned on appeal?
Mr. Rondinelli: One of the earlier cases that I was involved in — and Senator Baker, I won this case except the government came through the back door and amended the legislation to get around this issue — at the Court of Appeal was a retroactive, where at one point we needed two murders. Ours was retroactive and we needed more than one murder to do it. In that case, we were successful at the Court of Appeal saying that these three individuals should not be in the data bank. We travelled to Ottawa to make sure that the profiles were removed from the database because some experts suggested to us that an electronic trail is never removed and potentially can cause issues. Even if the profiles are removed, they can still come up somewhere. Again, it is beyond my realm, but we brought our expert along and finally, after speaking to whoever he did, he was convinced and reassured that the profiles were off the system.
In terms of the removal process, at least that aspect, in my experience it seems to work properly. That goes to the integrity of the data base, and we are happy that is working.
In terms of the efficiency of having the ones removed that should be removed, I hear different messages from different people regarding that case, that they did not have the full picture potentially. I cannot comment on that matter. I read the numbers in the judgment. I think I can read them two ways. One thing I know that jumped out at me was 97 per cent recidivists from some of these things. Not even my clients commit that many crimes. I cannot tell you in terms of the efficiency if it is a problem or not.
Senator Runciman: I am wondering about a distinction. When someone is arrested for an indictable offence and fingerprints are taken, that has been found to be constitutionally sound. Do you object as an association to the taking of fingerprints? I understand from your submission that you object to the taking of a DNA sample upon arrest. How do you draw that distinction? If appropriate safeguards were put in place for destruction of sample following a not-guilty finding, how do you reach that position?
Mr. Rondinelli: This movement is not new. The police chiefs have asked for it since the first legislation came out. It was such a movement back then that the committee — and I do not recall which committee at the time — took it upon themselves to go and obtain legal opinions from, I believe, three former Chief Justices of different provinces. I know Chief Justice Dubbin at the time was one of them. I think there was Chief Justice Fraser, if I am not mistaken. I do not want to guess about the third one. Three esteemed jurists looked at the issue of obtaining DNA upon arrest. All three came back unanimously, and their opinions are publicly available. They all reached the same conclusion in different analysis, but they all reached the same conclusion saying that it would be a Charter violation. They did not put any weight in the U.S. situation because they said: First, we have a Charter — back then the Charter was 20 years old or whatever the time was — and we have developed as a country, with our Charter; and under our Charter, it would be unconstitutional.
It was an easy question to answer for the committee back then. They did not put it into legislation. If the Chief Justices come back and tell the committee that, good luck trying to convince a judge outside that it will be constitutional.
I still think we hold those three opinions in high regard and think it would be different. Rodgers has some comments. We will see how it goes, but it definitely is debatable. I do not think there is a clear answer to say that because the U.S. and the U.K. are doing it, it is fine. I do not think that should be the answer for anything.
Senator Runciman: It is hard to get around the distinction between fingerprints and withdrawing bodily fluid.
Mr. Rondinelli: One thing that distinguishes us from the U.S. surprisingly is that we maintain the actual bodily sample. We do not destroy that sample. Yes, we obtain the profile of individuals and whatever you want to call it, whether it is only junk DNA and it means nothing — it is only a numerical code that we use. However, we do hold on to that bodily sample. The U.S. does not. Most of the states, as far as I know, destroy the sample because of the privacy interests. They wanted to appease those lobby groups and said they would use and expand the sample but would then destroy the sample. That would keep them happy. Here we keep the sample. The question becomes, what happens in the next government if they want to do something with those bodily samples? If they go down that route, they need a good reason to do it, and that played a big role, as I recall, in those decisions.
Senator Joyal: I was surprised by your statement that for one of your clients to be sure that the sample was removed from the bank, you had to travel from Toronto to Ottawa. That is amazing. Is that the same for anyone with a sample in the bank? If there is the possibility for removal, to be certain that the sample is removed, is it better to travel to Ottawa for the conviction and have the certainty that the sample has been destroyed?
Mr. Rondinelli: I will not go through the whole history of the case. It was obviously an important case, especially with the involvement of the data bank. It was in the early days of the data bank. If we were apprised of how the data bank works, that goes a long way with our colleagues as well, and the rest of Canada. I have experience. If a client's conviction is overturned, there does not seem to be a process to go through to have the sample destroyed.
I write to a number of people and say: Please remove the profile and confirm that it has been destroyed. Usually that is okay.
You can ask many criminal lawyers about dealing with fingerprints. That process is the messiest to go through because the letters we receive back range from, who are you and why do we have to follow to yes, and they have a nice standard form. There is not a standard procedure for fingerprints. DNA is not as messy as fingerprints, but with DNA, it does not happen often that a conviction is overturned so that we have to have the evidence destroyed. I do not know what the statistics are. The gentlemen at the back probably know more than I do in terms of how many profiles are destroyed from the data bank. I do not foresee that number being large at all.
Senator Baker: My question will be along the same lines and will conclude it.
I imagine you have to write many letters to satisfy the Identification of Criminals Act, although the person is no longer a criminal and was never convicted of anything. Yet, there is that procedure.
Regarding the DNA Identification Act, are you aware that we put in a provision, section 9(2)(a), and it said that if a conviction is overturned on appeal and the person is then acquitted — declared innocent by the superior court overturning the provincial court — that DNA sample will not be destroyed until the order is finally — the words ``final acquittal'' are used — set aside? It means after all appeals have been exhausted. Were you aware that section is in the act? It is a good constitutional question. I suggest it because it is a great constitutional question for you to go after next trial.
Mr. Rondinelli: It does not happen often.
Senator Baker: We should not have a DNA sample of an innocent person; yet we have it written into the act.
Mr. Rondinelli: We have always had a problem with keeping the sample in any form. That has always been our position. We lost that battle long ago, so I do not anticipate we would win it these days.
The Chair: Mr. Rondinelli, thank you very much indeed. It has been an interesting, informative and helpful session. We are grateful to you for coming to help us with our work.
Colleagues, we will suspend for two minutes and then resume our work in camera. I will ask all persons who are not members of the committee, members of committee members' staff or of the committee staff to leave the room.
(The committee continued in camera.)