Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 15 - Evidence - November 2, 2016
OTTAWA, Wednesday, November 2, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 4:18 p.m., to continue its study on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome colleagues and invited guests.
Members, earlier this year the Senate authorized the committee to examine and report on matters pertaining to delays in Canada's criminal justice system and to review the roles of the Government of Canada and Parliament in addressing such delays. This is our twenty-eighth meeting on this study.
For our first hour today, we are pleased to have with us the authors of two recent reports of the Macdonald-Laurier Institute. Joining us today from DSN Consulting is Scott Newark, Public Policy Consultant. He is the author of the report, Justice on Trial: Inefficiencies and ineffectiveness in the Canadian criminal justice system.
Joining us via video conference from New Zealand is Rick Audas, Associate Professor, Health Statistics and Economics, Memorial University. He is the co-author of the report entitled, Report Card on the Criminal Justice System: Evaluating Canada's Justice Deficit.
Thank you, gentlemen for being with us today.
Mr. Audas, I gather you have drawn the short straw and you will lead with an opening statement. The floor is yours, sir.
Rick Audas, Associate Professor Health Statistics and Economics, Memorial University, as an individual: First, I would like to say thank you for the opportunity to testify before the Standing Senate Committee on Legal and Constitutional Affairs. For me this is a true honour and privilege, so I'm very appreciative of the opportunity.
I would like to speak to you today about some work I have done with Benjamin Perrin at the University of British Columbia, and this work, as you know, was sponsored by the Macdonald-Laurier Institute.
What we did was examine the performance of each province, and we began this process with a fairly lengthy list of things we were interested in trying to study, and things that, when we brainstormed, talked about the things we ought to have in the report card, and what was important to Canadians. Because, ultimately, any scorecard that gets produced should reflect the values and priorities that Canadians have.
Unfortunately, we were somewhat disappointed with the data that was available and the way it's collected and used. I will speak more to these points in a moment.
One thing that's pretty clear is we lack strong benchmarking data across Canada. So it's not clear what is an acceptable length to process a claim, what is the acceptable clearance rate for the criminal proceedings and what is an acceptable length for a civil court matter to occur. I think we all understand we want these things to happen quickly; it's just that there is no benchmark to which we can compare performance, and that is quite an important consideration.
The Chair: Professor Audas, I am sorry to interrupt. I wonder if you could slow down just a little bit. The interpreters are having some challenges, I guess. So just slow down your delivery a bit; it may help the situation.
Mr. Audas: Certainly, will do.
The end result was that the work we did was comparative, and what we did was we compared each province to a national average and not to any agreed performance standards, and we felt that was the appropriate way to proceed with the work, given the lack of any kind of established benchmark in the literature or in practice.
We collected data, mostly from CANSIM, which is Statistics Canada's portal to access data from the vast holdings that they have, looking at what data is available, but eventually, we settled on approximately 30 indicators that would be grouped into five major domains. In most instances, we relied on the data collected at the three most recent points. This was either 2013-14 and 2015 or 2012-13, although there were some cases where we did have to take data from as far back as 2008 or 2009.
We grouped the findings into five key domains. The first was public safety, which measures different crime rates, clearance rates, the number of individuals unlawfully at large, the number of individuals who failed to appear, the number of instances of breaches of probation and the perceptions of safety in the public.
The second domain was support for victims and police being approachable, the supplying of information to victims and citizens, the number of restitution orders provided and referrals to victim services.
The third domain was cost and resources. This is the cost to public safety, the cost of incarceration and the number of police officers in each province. Again, the data in each case is presented and analyzed province by province.
The fourth domain was fairness and access, and this was police being fair, legal aid expenditure, proportion of custodial admissions being Aboriginal and another couple of measures.
The last domain was efficiency: police responding promptly, cases stayed or withdrawn, average case length and number of accused on remand. We thought this was a sensible way to divide the data into various domains that we could produce into a report card form.
What did we do with the data? To make the data comparable, we had to convert in many cases to rates, and we averaged the data over time to ensure we were not picking up an outlier. We averaged each measure and calculated the extent to which each province under- or over-performed compared to the average. Again, we reviewed the data, as I noted, earlier in comparison to an average and not to established benchmarks.
We averaged the results across the five domains to give us individual domain scores, and we averaged each of the domain scores to get an overall score and ranking for each province.
So what does the data tell us? Significant differences occur from province to province and across the territories; that's the one thing that was really striking. I understand that Canada is a vast country, but we generally think that services are comparable from place to place, but if you actually look at statistics, they are very different. There is a strong east-west trend, with three Atlantic Canadian provinces taking the top three spots in the rankings, and they were Prince Edward Island, Newfoundland and New Brunswick. Quebec was fourth and Nova Scotia was fifth.
One thing that jumped out at us in looking at the data was the very high crime rates that we see in Western Canada, particularly in the territories, and from that, the challenges in the justice system in those provinces and territories, given the greater volume of crime we see.
We see substantial differences in the processing of criminal proceedings, including differences in clearance rates, case lengths and the proportions of cases stayed or withdrawn. We saw quite striking differences across the provinces and territories.
Again, striking to us was the things we didn't know from the data. For instance, we have little data or no information at all, to the point where it was not usable, to say anything about the civil courts. Of course, civil courts are extremely important in Canada because they are a means by which disputes are resolved, and our inability to say much about that really does talk a lot about our inability to assess how quickly disputes can be resolved.
We know very little about repeat offending and recidivism. Again, those are two things we think are important to Canadians, and two areas where we think the justice system probably needs to do better, but the data allows us to say almost nothing at all about them.
We don't know very much about victimization. Again, it is something that strikes us that we need to understand what happens to the victims of crime and how we try to cope with difficult circumstances that people have been given.
We also don't know much about self-representation and alternative dispute resolution. Again, one of the emerging trends in the literature is the increased volume of individuals who represent themselves and this is largely attributed to costs. Legal aid as we know is really only available for the very poor. Yet legal costs and the costs of legal representation are getting more expensive and becoming more and more complex. It is difficult for people to actually secure representation and there is lots of anecdotal evidence about legal actions that are brought on a variety of grounds that simply run out of money. Again, one thing that we're concerned about is that there is substantial inequity in the system and that also certainly slows the justice process down. For individuals who self-represent, those cases tend to take longer than individuals who have a professional background.
The Chair: Professor, sorry to interrupt again. Do you have much longer? We want to have time for questions. Could you sum up your presentation, please?
Mr. Audas: Absolutely. So again, one of the things we will come back to say is there is a lot of good performance indicators. One of the things I like to hone in on is other communities and institutions, particularly health and education organizations, have used performance data to draw from. Again, one of the overall and most important themes is around using that information to better inform and better manage the way we deliver services in Canada.
Again, as a conclusion, we believe that the justice system is a pillar of Canadian society. To serve its roles, it has to be efficient, competent and fair. It is important to be responsive to what the data is saying, delays and deficiencies and inequities need to be carefully monitored and addressed in a timely fashion and more timely data needs to be made available to those within the system, and those individuals should be accountable when their performance falls below agreed standards. Thank you.
Scott Newark, Public Policy Consultant, DSN Consulting: Thank you to the committee for inviting me to appear before you. I've been following the proceedings as much as I can, and I have to tell you last night I was looking at the list of witnesses, which is incredibly impressive. The work you are doing is serving as a platform for advancing some of these complex issues, especially when you consider the nature of our justice system with the multiple levels of governmental.
A couple weeks ago, I was encouraged to see that at the FPT meetings with the Justice Ministers that they have added this subject that you are studying to something that they want to add themselves. I had recommended that as a potential vehicle for addressing some of these issues because they do cross jurisdictions.
Let me explain about the report I wrote. Maybe five years ago, a friend of mine, who was ex-RCMP, asked me if I would meet with this new institute that was being set up, and so I did. I was asked if I could pick one subject that they could do a report on that would be the most important, what would it be? I said to analyze crime statistics, because we have a goldmine of information, in my opinion, in the crime statistics produced.
There are definitely things that need to be improved, but I started doing this when I was executive officer of the Canadian Police Association back in the 1990s to look at the data, and in particular to look specifically in relation to repeat offenders. That's how I got into the policy world as a Crown prosecutor in Alberta.
The guys would come to me and say that we have a situation, how do we do this? You figure out a way to do this. We would try to do exactly that, and frequently at the end of day, and on some high-profile cases involving repeat offenders, I came to the realization that it was not that you could tweak this or use this section, the laws themselves needed to be changed.
It was that approach I have tried to use since then in the different roles I have held of identifying as specifically as we can what the problem is. And then to go to the next step and say if that is the problem, why is that a problem? That requires some of the analysis you have been doing in your committee. The next step is if we have it narrowed down to understand better why that is a problem, that is the step that leads to coming up with options for solutions.
Different perspectives bring different viewpoints on the solutions, but at least if it's tailored that way, you have a very good head start on addressing the issues. And specifically that's why I have been impressed with the work your committee has been doing.
I will give a high-level overview of things, and hopefully during questions we can get into the specifics.
The report I wrote for the Macdonald-Laurier Institute got some initial data analysis on specific issues, and some of them had problems identical to what the previous witness dealt with. The idea was, having identified what the data is and what it points to in relation to efficiencies, or lack of effectiveness, and I view those as different, to then say, okay, start with who is it that is in our justice system, what is the nature of the cases we are dealing with within the justice system? When we have a better understanding of that, we can identify whether there are things we can do to deal with those cases.
I admit much of my focus has been on repeat offenders. I don't think we have done a very good job over the last 15 years in dealing with repeat offenders because one of the realities of our justice system is there is a disproportionately large volume of crime committed by a disproportionately small number of offenders. When you target those people, operationally or by policy, you can get significant public safety results.
Frankly, looked at in a different way, dealing with repeat offenders is crime prevention. When you are talking about people who commit crimes over and over again, denying them the ability to be in a position where they can commit crimes is crime prevention. It is not the exclusive part of crime prevention, obviously, and I know you have had good discussions, and I have read some of the material and the questions that Senator White has asked in relation to whether it is alternative measures or diversion, but differentiating between the different offenders in the system so we don't take this uniform, one-size-fits-all approach, which in relation to repeat offenders, we do.
The second part of that is having identified who it is and the profile of the cases in the system, how does the system deal with it?
It's a reality that since the introduction of the Charter, our system has become more process-focussed. It's not so much about whether the evidence is relevant, but whether it is admissible. You have to appreciate that our justice system was designed long before the Charter of Rights came into existence, and it's one of the greatest strengths of the justice system, much to the surprise of some of my Conservative friends. I think the genius of our justice system is its ability to deal with this offender, this offence, and part of that is inherently the discretion of the officials in the justice system. It is not just judges. It is police officers, prosecutors, judges and even, post-conviction, corrections officials, and whether or not we have a system that is functioning that way and taking advantage of that discretion, where I know you have had witnesses who have spoken about a risk aversion culture within the justice system, and that's a very difficult challenge.
I put some recommendations forward, and I can touch on some, if you want. It is about what I would call the lack of effectiveness, for example, corrections programming. Would it not be a good idea to know which programs are resulting in lower recidivism rates?
I got that sense when the previous government shut down the prison farm program, and the explanation given was that they are not going on to become farmers. Well, the value is not that we expected them to become farmers. It was that they were going to learn the human skills and tendencies that would lead them toward not committing crimes.
A second area, which is always important when you are looking for money, is the issue of uncollected fines and bill forfeitures. I stumbled across this years ago at the Police Association when I was testifying on a bill to change the way we collect unpaid fines.
Unfortunately, accurately, I predicted that what would happen is we were going to end up with a lot of unpaid fines. When I worked with the Ontario government, and we were proposing amendments to victim service to increase it, I knew it would cost money. I found in government it's always a good idea, if you are proposing something, if you can find a source of money, rather than by asking for new funds, that's a good way of moving your suggestions to the top of the list.
We found I think it was $490 million in uncollected fines, probably about $50 million in uncollected bail forfeitures. That is where someone breaches the conditions of the bail conditions, and there is a process where you go to Superior Court to get an order that says you have to pay us the money. We just don't bother collecting it.
The Ontario Association of Police Services Boards did a review in 2011, and they found in the province of Ontario alone the amount of uncollected fines was $1 billion.
The Chair: Mr. Newark, I will ask you to conclude.
Mr. Newark: There are some pragmatic things that can come out of the work of this committee, and I hope some of what I suggested will assist you in doing that, because it is absolutely necessary, but I also believe, ever the optimist, it is also doable. Thank you.
Senator Baker: Thank you for the work that Mr. Audas and you, Mr. Newark, have done in your reports that you have produced.
Before I get to my main question, since you were a former Crown prosecutor, Mr. Newark, I don't know if you have comments on the two subjects we have been examining, the use of prothonotaries to settle a lot of pretrial issues, prior to the trial taking place with the trial judge, to relieve the trial judge of those responsibilities. The second one is that the Crown be required to produce all disclosure to be used at trial prior to trial, and the entry of any new evidence would be done just as it is done if you were entering new evidence at an appellate court level, that is you have to show you used due diligence and it was not available at the time the trial took place.
My main question relates to your study. Your study says that Ontario has a very poor record in that there are a number of stays that have been entered. It has the worst record with the numbers of stays. You compared the numbers of cases, the charges and then the stays and then what was actually at trial. You suggested that a better system was where you have a Crown prosecutor rather than the police. You mentioned that the police in Ontario lay charges — I believe you mentioned that — and the suggestion was that, in provinces where the Crown actually lays the charge, there was a shorter period of time. You had fewer stays.
Senator White pointed out to our committee, on a recent visit to Montreal, that, in fact, there are only two provinces that have Crown prosecutors who make those decisions, and those provinces were British Columbia and New Brunswick. Quebec, in fact, does not. The problem I see with your report is this: You say Ontario has the worst record yet you also say that Ontario has less violent crime per capita than any province in Canada, any jurisdiction, and the second lowest property crime rate.
So a reasonable person looking at your report would be saying, "Bring on the stays; bring on a system in which you have the police laying the charge in Ontario. Yes, you have a lot of stays, but it's the safest province as far as violent crime is concerned.'' So you condemn in your report, if I might be quite truthful with you, the way I read it, that system for wasting money and so on, but the rational person would look at it and say, "That's the place I'd like to live.'' How do you respond to that criticism?
Mr. Newark: First of all, the data that you cited is not from me; it's from Statistics Canada, from Juristat. This might surprise you, but I actually do not like the idea of the Crown being the one that has to approve charges.
Senator Baker: Good for you.
Mr. Newark: I think it is a mistake because of what I said before. There are different components in the justice system that exercise the discretion. I think the system has become far too bureaucratic, in my opinion. I mentioned risk aversion as well, where it's easier to lay more charges than it is to be criticized for not laying the charges. I left being a prosecutor in 1992, so it was a while ago. We didn't have pre-charge screening by the Crown, but, because of some of the work I've been involved in, I was involved with some of the police on some of the operations that they specifically were involved in. But it wasn't a formalized process where I had to approve this or not approve this. In the report, what we're talking about is the efficiency of the system. If you have charges that aren't justified, that likely is going to lead to a longer time to resolve it. This is my experience as well. The better job we do at the front end of dealing with an individual case, the more likely the case is to succeed going forward.
To your point about using alternative methods of coming to case resolution, it's one of the things that I suggested that the committee might want to look at — the specific procedures that are formalized now for case resolution — to see whether or not they're actually accomplishing anything or whether it's just that we've added more layers of meetings into the system. I would recommend former Assistant Deputy Minister Greg Lepp's report from Alberta about that. That was my sense. I occasionally go to court and take a look at things. I just shake my head. The line I used one time, senator, being in docket court, was that there was a lot of activity but not a lot of productivity.
Senator Baker: So you would agree that instead of lawyers showing up on a Monday morning and packing the courtroom, why not settle a lot of this stuff through the Internet, just email?
Mr. Newark: Absolutely. As an example, if I might, to go a little bit further, the notion of disclosure. I read the evidence from your representative from the Canadian Bar Association, and I was surprised. I normally don't find myself agreeing with criminal defence lawyers, but, in this case, I absolutely did. It's ridiculous in today's world that we have to wait the way that we do to get disclosure. I did some work for the Calgary Police Service in 2013 on the economics of policing. Chief Rick Hanson asked me to take a look at a few things. They had developed what was functionally a database — an electronic database capability — but they couldn't get it to connect with the Crown's office. One of the other things I would mention about how you can effect change is that it's not always that you have to change legislation. Sometimes you can achieve desired results by operational changes. Sometimes it can be involved in technology. I believe you had presentations in relation to I think the acronym was OSCAR, for a database analysis. One of the key parts about that is you're going to have to have, in effect, database information security, identification verification, so that the people that you think you're giving the information to are actually the people you're giving it to. But that technology exists; it's out there. So we could do it.
Senator White: My thanks to the witnesses. Mr. Newark, good to see you again. My comments are going to come back to crime prevention because I appreciate your quoting me, but there's another issue that has come forward. That has to do with the lack of residential drug treatment in this country. We have about a seven-month wait list, and, in fact, some research out of Western Canada from about eight years ago identified that the average street addict would commit four to eight crimes per day to satisfy their addiction, not surprising to most people who work on the streets.
Do you also see responsibility for the Canadian government to actually push forward on a national drug strategy? The greatest crime prevention tool anybody ever built might be a drug treatment centre, right? Would it be an opportunity for us to move people into treatment instead of moving them into correctional facilities and federal institutions?
Mr. Newark: I agree 100 per cent. That, I think, is really the skill that we need to bring, which is that we recognize the differences and the different nature of offenders.
For example, let's say that you're dealing with the kinds of people that you're talking about, we ultimately don't even necessarily need to record convictions; you can use alternative measures. What I've seen, though, in some courts in Ontario, is, frankly, how long that process takes to get underway. One of the ironies is that, the longer the cases go on, when people are put on bail conditions for the kinds of people that you're talking about, the longer they're on those bail conditions, the more likely it is that they are going to breach their bail conditions.
One of the statistics that I think would be very helpful to look at is that you've seen the increase in what they describe as administration-of-justice offences. I'd like to see how many of those offences are actually linked to new crimes being committed or are just for the breach of the conditions. I suspect what will have to happen is that we are going to have to put some more money into the actual people on the ground in the courts that are able to recognize that this is an appropriate case for diversion or alternative measures. As to the conditions of that, it may be that it's on bail, but you are going to go into the kind of treatment programs that you're talking about so that we're doing it faster as opposed to dragging it out with court appearance after court appearance after court appearance. I think we actually have the capability of doing that. This will be why it's not going to be just the federal government; this is going to have to be the provincial governments as well. They are going to recognize and develop the strategy that you're talking about, but we're going to try to do it to reduce those people coming back to court. Let's face it; frankly, that's the sense of the system. If you can get people not committing those kinds of acts, that's in the interests of public safety.
Senator White: Mr. Chair, if I may, another short question for Mr. Audas. Some of the research — and in fact I was involved in some last year in Australia — around the economics of residential drug treatment, as an example, rather than using our mainstream justice system, identified that, every dollar spent on residential treatment would save $7 from our system, from policing all the way through to the courts. I'm wondering if you've had any involvement. I know the London School of Economics has worked on it. Have you done any work on the savings that can be found around alternative systems, not only alternative measures but alternative systems to mainstream justice, to try to deal with some of the people involved in criminal activity?
Mr. Audas: None of my own research has been engaged in that area. But I've certainly read some of the papers in this area, and they absolutely back up what you're saying. Processing people through the justice system is an extremely inefficient way of dealing with them and a much more efficient way to do them is to figure out what the underlying cause is and then to deal with that. As you pointed out, there's a significant shortage of resident facilities for individuals suffering from addiction. As a result, these are the recidivists that we see and these are the people who, while they're waiting to have one issue processed by the courts, are off committing more and more crimes.
Even when we measure these things, we're actually measuring the cost to process them. We're not actually measuring the damage done to the victims, which is something that is significantly underestimated in most studies. For the victims of crime, the impact on them is significant and completely unaccounted for. Again, the spending of $1 to save $7 is probably a massive underestimate when we think about the victims of crime that potentially are out there as well.
I think these things are issues that very much need to be explored from a pragmatic sense. One of the problems that we have across government is that that you're crossing justice with health care and social services, and the systems don't talk to each other very well and deal with these situations in a pragmatic sort of way. We really need a joined-up government approach to deal with these kinds of problems, and there's no doubt in my mind that there would be substantial cost savings and much better outcomes. Not only would we save money, but we would have fewer addicts, fewer victims and lower rates of crime.
Senator McIntyre: Thank you both for your presentations and the work you have done.
Mr. Newark, you make several recommendations. One of the recommendations that you're making — and I believe you've touched on this indirectly — has to do with increasing the jurisdiction of provincial courts. As a matter of fact, you recommend that the code be amended to create select hybrid offences with a five-years-less-one-day sentence option and section 553 amendments to ensure absolute jurisdiction of provincial courts. I'd like you to explain that a little bit.
Another recommendation that you make is for a review of mandatory case resolution procedures under part 28.1 of the code. You conclude that this potentially delays cases, processing rather than expediting them. Could you elaborate on this, please?
Mr. Newark: Yes, sir. I'll start with the preliminary inquiries. As I'm sure you know, the notion of preliminary inquiries was, of course, the method by which the Crown disclosed the evidence that it had to the accused. They were repetitive in the sense that you would pretty much run the same case that you would run at trial. The standard was lower for a committal to stand trial. But then came Stinchcombe that mandated disclosure. In the office that I worked in we gave disclosure virtually all the time. We didn't need the Supreme Court telling us we had to do it in Stinchcombe because it was a good idea. Because if the lawyers knew we had the evidence, they could figure out I wasn't going to forget to prove Leduc was in Alberta. So it increased the likelihood of there being guilty pleas when they knew what the evidence was.
It's a very good example, I think, of one of the impacts that I said. When that case came out, the Stinchcombe decision impacted a justice system that was already set up with preliminary inquiries. There wasn't the sense of, "Wait a minute, does that mean we need to continue to have these, if we're giving the disclosure that the preliminary inquiries were going to do?'' It's one of the things that I think would be worth looking into.
The example I used was on a residential break and enter. The sentence is life imprisonment. Hello — no one ever gets sentenced to life imprisonment for a B&E, so why not create a separate section and section 553 gives the provincial courts absolute jurisdiction. If it turns out that's the case, there would certainly need to be more funding for provincial courts to be able to do that, but I would suggest it's worth looking at. If it's already being done because of a Supreme Court ruling, why do it again?
On the case resolution procedures, what I meant by that specifically was just even things I've heard anecdotally and things I've seen myself, where it appears as though the measure of success is that we've held the meeting as opposed to whether or not the meeting actually produced anything in terms of resolving the case. When you get into, in particular, sort of a risk-averse approach — and you've had several witnesses testify about the culture of delay and the acceptance of the culture of delay — I think it would probably be valuable to stand back for a second and say: "Let's take a look at these various mandatory case resolution procedures. Are they actually producing anything other than having a meeting?''
In effect, cold, hard analysis of the fact, I'd like to encourage Statistics Canada and Juristat on this, for example. When they look at all the adjournments, I'd like to know what the purpose of the adjournments was.
Senator McIntyre: Mr. Audas, I have a couple of questions to you. How does your report differentiate from previous reports on the state of Canada's criminal justice system, and will your report become an annual exercise, so to speak?
Mr. Audas: To our knowledge, this is the first sort of systematic look, province by province, at comparing performance across an agreed objective set of measures. I think we're the first report card in Canada to do this. I think in that sense, it's an important starting point for looking at how the justice system performs, to shine a light on differences from province to province. I think that while Statistics Canada does a tremendous job in collecting the data, it's not as easy to access it and then to interpret it. A lot of times there's quite a bit of work and quite a bit of thought that had to go into how to present statistics so they would be comparable from province to province. I think our work is an important step in that regard.
We had hoped and we've been successful in this regard in generating quite a bit of attention to the matter, to the report card and seeing how we can improve it going forward. Of course, we're only able to analyze the data available to us. We rely heavily on what Statistics Canada does. One of the things I would point to is the need for more data and very much the kinds of data that Mr. Newark just described, the data looking at the outcomes of proceedings and why things end up the way they do. The more information we have on that, the more that data can be used to actually improve performance management. This is done across other sectors. Notably, most of my work is in health care, and we do a lot of work in health care on performance indicators and how organizations can use those indicators to improve management and performance.
Senator Batters: Thanks very much, both of you. Mr. Newark, thank you very much for the kind compliments that you paid the Senate for doing this particular study. We're pleased that others think this is important work to be done. Having sat at that FPT table for about four or five years with the justice minister in Saskatchewan when I was his chief of staff, I know this is a constant topic of conversation. So it's very nice to be able to try to help out these provinces and territories as they struggle with these issues.
I would like to hear a little bit more about your recommendations to help us address court delays. I'm wondering if you might have any particular suggestions specific to the problem of impaired driving, because that's an issue that has been, I think, causing a real glut in the criminal justice system, and it's an important issue, absolutely, that needs to be dealt with appropriately, but at the same time I wondered if you had any particular suggestions to help us with that.
Mr. Newark: First of all, I also have attended FPT meetings, assisting ministers. If I recall, at one such meeting the Government of Ontario put forward more recommendations for policy changes than all other provinces combined. It can be a really good forum to get things done.
With respect to drinking and driving, one of the things that I mentioned, I think, in the report and I know you're familiar with the B.C. approach where, frankly, what they have done is decriminalize drinking and driving. Okay, yes, it's having a positive effect in reducing their court times, but let's all just be clear what we're doing here. The amendments the previous government brought in in relation to getting rid of the so-called expert witnesses, we used to refer to as the "two-beered offence,'' where you had the guy come in and experts would come and give stuff. That has been reduced. It is an ongoing problem.
One case I suggest you look at that you might find insightful is from the Ontario Court of Appeal this year called Jackson. It is basically where the Court of Appeal is blunt in talking about how requests for disclosure along the lines of what Senator Baker was talking about have become ineffective — a sword, not a shield — as a Charter protection, and they were frivolously being done and dragging things out and taking more time. It was in relation to the certification of the breathalyzer and the testing, and it was an old friend of Senator White's, Vince Westwick, who was the leading force behind getting the case referred to the Court of Appeal.
It's those things where you are able to say that we are not going down this road, and the exact words they used in the Court of Appeal was that the request was a "fishing expedition.'' I wish we had more judges making decisions like that.
I don't know the answer to this question, but it's worth looking into. Because we have become such a process- focussed system, it is not so much whether the evidence is relevant or admissible. The more we were able to tailor or clarify what it is that is required by the police to get judicial authorization to get the evidence and to somehow be able to convert that on satisfaction of that, that it is presumptively admissible in court, I have a feeling it might save us a lot of time. It may not go over that well with some defence counsel who are paid by the time spent on the case, including legal aid, but I think it might produce a vastly more efficient justice system.
The one thing I think is, boy, we had better get this right before we introduce it, is some kind of testing for THC content in driving, because if we don't have that, it is going to be a nightmare.
Senator Batters: Absolutely. Mr. Newark, you referred to the $1 billion in uncollected fines in Ontario, and that's just astounding.
Mr. Newark: Isn't it?
Senator Batters: What I note about Ontario, and we've heard this many times, different lawyers from Ontario come before us and talk about how they don't want mandatory fines and certain offences, they don't want this or that, but what I constantly come back to is the fact that Ontario is a jurisdiction in Canada where they don't have a fine option program. They don't have a community service program, unlike many provinces, including my home province of Saskatchewan, where they do have that. Do you think that the Ontario government installing a fine option program, community service and that sort of thing, would be a significant benefit to that problem?
Mr. Newark: I don't have sufficient familiarity with the way they are doing things now in Ontario, but I would hope that coming out of the committee's work there is an analysis of best practices across jurisdictions so you can figure that out.
One suggestion I would make, section 734.5, if we amend that, that says the province can withhold a licence or permit if a fine is outstanding, I would suggest we add "or payment,'' because one of the things we found in our research was that we are giving money from government, whether it's tax returns or social welfare benefits, to people who owe us money in unpaid fines and bail forfeitures. If we put that in and changed it so provinces could do that, you would have to get the three levels of government working together to collate the databases, and you could work out a staggered payment plan.
It might help solve some of the problems on the victim fine surcharges, where you say we are going to give you 100 bucks, but it's coming out at 10 bucks a month so that's one less pizza a month.
I would create a fund like we did in Ontario with the victim justice fund, a statutory, dedicated fund where the money could only be spent for certain purposes in relation to public safety or administrative of justice, rather than going into the black hole of general revenue. That would produce results, and what a remarkable concept, raising revenues by collecting debts owed to us by people who break the law, rather than raising taxes on people who obey them.
Senator Baker: Your reference to decriminalized drinking and driving, you made that statement a moment ago, well, it's never been unlawful to drink and drive in Canada. It has been unlawful to have more than 0.08 of 100 millilitres or being impaired.
There was never a law that said you can't drink and drive, unfortunately, but your reference to creating a shortcut to have the evidence of an officer stand as being a presumption of what the evaluation officer did, I presume you are referring to the drug-impaired driving provisions and the evaluation officers, that is the case before the Court of Appeal in Ontario. Were you referring to that?
Mr. Newark: No, it wasn't a drug-impaired case. It was alcohol impairment, and the defence council asked for certification in relation to the breathalyzer, and the evidence was held by the Ottawa police, not by the Crown, so there is a separate process to go through to get that. It went all the way up, and there was a ruling made, but the Court of Appeal described it, as I said, there was no purpose to this; it was simply to delay proceedings.
Senator Baker: That is a continuation of a whole whack of case law. You recommend that you take a charge under the Criminal Code, like break and entry with intent to commit an indictable offence, and you say to put that into exclusive provincial jurisdiction as an option.
Our committee examined that provision in the code, and what we may suggest is that because you have a multitude of charges sometimes, for example, you would have a CDSA count in with the break and entry count, in with another count. You would maybe have 10 or 12 counts, some of them exclusive CDSA, meaning you have the federal Crown prosecutor, and down here you have the exclusive provincial jurisdiction that you mentioned you should put those cases. Well, you would have two cases going simultaneously, two courts tied up, the evidence the same.
The committee is thinking about suggesting in its final report that, instead of having that situation, whenever you have the situation of having the federal prosecution service prosecuting some counts, and the provincial prosecuting service prosecuting other counts in a different courtroom, that whichever judge — usually the Superior Court judge — takes control of the case, that that judge would be the judge that would determine the exclusive provincial jurisdiction. Do you agree with that suggestion?
Mr. Newark: Yes. And, in fact, in my day —
Senator Baker: That's what you would do, probably?
Mr. Newark: Frankly, I would handle some of the federal cases myself.
Senator Baker: So you agree with that suggestion?
Mr. Newark: Put things together so you do not have duplicative processes, absolutely.
Senator White: My thanks to the witnesses.
We have witnesses telling us that our system is broken and that we have too many people in court and too many people charged. But some of those same witnesses say they want more resources to deal with the fact that we have the wrong people all too often in our court system, which I don't agree with. My perspective is let's reduce the number of people in our courts.
A few years ago, we did some research where three provinces were identified where on average cases were taking nine appearances to deal with. There was no proportionality. It could have been a shoplifter or attempted murder; it didn't seem to matter. Twenty-five per cent of those cases were settled through a conditional discharge, absolute discharge or suspended sentence.
Do you see an opportunity where we have not just indictable and summary, but we have a no-charge category, where we can deal with it through release from a justice of the peace, judges, six months, be on good behaviour, without actually going through the necessity of having nine appearances and all the cost that goes with that? We know where we're going to end up. I could ask you, I could ask every defence lawyer, every prosecutor, every cop where we are going to end up with that case. They are going to say suspended sentence. Why couldn't we get to that in the beginning instead of at the end?
Mr. Newark: I completely agree. I think the biggest obstacle to that is our system. In our day, when we were working in it operationally, the individual officials used their discretion. I mean, nobody ever accused me of being particularly soft on crime, but I took it with, frankly, a sense of appropriateness. The final case I dealt with as a prosecutor, in a little town called Drayton Valley, was of a guy who, I think, was 18. He'd had a couple of previous business B&Es. He was hanging around with the wrong crowd sort of thing. The guys in the RCMP detachment said, "He is sort of turning his life around,'' so he was released on bail conditions. Frequently, what happens with that is that, if you comply with your bail conditions and it works, that becomes your sentence, as you say, in a suspended sentence. We went through all of that, and the police agreed and everything. He went and shovelled some snow at the business that he broke into and everything else. We came back, and he was about to plead guilty and get the bail conditions converted into probation conditions. I had a little chat with the police officer involved who knew his town very well, and, instead, I had the charges withdrawn because the kid had done a good job in turning his life around and the last thing he needed was to get a conviction added onto his adult record.
As I say, I don't think many people would have said that I was soft on crime, but that was, and I still think is, what is supposed to be part of our justice system — that officials exercise discretion. Yes, at the front end of system, let's deal with those cases in a faster way so that we don't need to go through the entire process, but that means people making decisions. Forgive my bias, but, in particular, in this province, it's the Crown. I came from a province where the Crown, frankly, was in control of the prosecutions and of the proceedings. That's not my opinion about what I've seen in the province of Ontario, and I think it has very negative effects on the system itself.
The Chair: Okay. Seeing no further questions, we have a few minutes if either one of you would like to make a few comments before I wrap up the session. Professor, do you have something before we wind up?
Mr. Audas: Absolutely. Just to follow up on Mr. Newark's points, I very much agree that I think we need to look at alternative approaches to doing things. With the volume of material and cases that are going through the system, we need a way to expedite them and to find efficiencies in the system. So if we can agree on a shared understanding of what the outcome is going to be, let's move to that as quickly as we possibly can.
The other thing that I would say is that we need the data to look at these cases and to evaluate what happens because I think we really just don't know, in so many cases, what the ultimate outcomes are. Therefore, we are unable to make good policy decisions because we really just don't know what's happening. That really does speak to a sort of national registry of cases and crimes and individuals who commit them and individuals who are victims of them. I think that, if we had that resource, a lot of the questions that we're posing here and a lot of the issues that we're discussing here and dealing with in an anecdotal way, which is the only way we can because that's the only data that we have, we could answer much more definitively. Therefore, we'd make much more efficient policy.
Mr. Newark: I'll just follow up the point in relation to data because that's what got me looking at the crime statistics. I do want to say that I think that Statistics Canada's Juristat reports have improved significantly over the last five years, but I completely agree about the importance of the data we're not collecting. Why on earth do we not collect data about, in effect, the offender profile? How many crimes were committed by people who were on bail, on probation, on parole, non-citizens who were already subject to deportation for past criminal conduct? We do collect that data. I would see that information when I got the materials from the police on a file. We do collect it; we just don't analyze it and don't report it. I think doing that would have two significant benefits. First, it would introduce a measure of systemic accountability that is, in my opinion, significantly lacking in our justice system. You'll always hear, of course, about the importance of independence, which is true, but independence and accountability should not be irreconcilable concepts.
Second, it's better that we have that information — that's why I started to look at this information — because it helps to make informed policy decisions. The line that I've used frequently is that we really don't need to be tough about crime; we need to be honest about crime so that we can be smart about crime. A good place to start with that is, as I say, repeat offenders and corrections because there are significant changes that we could make that would target those people who are responsible, as I said before, for committing crimes over and over and over again. That would increase public safety. But we could also divert resources to the people who are the first-time people entering into custody. That's where you want to target your resources. I think that we have far too much of a one-size-fits-all system. The work that you're doing hopefully will target some analysis on that so that we can improve it.
The Chair: Thank you both, gentlemen. I very much appreciate your appearance and testimony.
Our next witness is anxious to put a number of things on the record. We now have joining us David Bird, who is a retired counsel, formerly with the Department of Justice Canada. He's appearing here as an individual today.
Mr. Bird, thank you very much for being here on such short notice. We very much appreciate it, and the floor is yours, sir.
David Bird, Retired Counsel, Department of Justice Canada, as an individual: The first thing I would do is thank you for the opportunity to be here today. It's something that I felt strongly about when I was practising in the Department of Justice and I'm anxious to try to do what I can to help move forward this particular file. One of the things I did was write a letter to the minister, the Honourable Ralph Goodale, which I copied to the chair of the committee. I assume one of the reasons I'm here today is because of that letter.
If you will bear with me, I would like to put that on record so at least it's available for future consideration by those who may want to look at it. The letter is to the Minister of Public Safety. It reads:
Sir: I am writing to ask you to introduce legislation immediately to authorize taking DNA automatically on conviction replacing the complicated system that currently exists and hamstrings the effectiveness of the National DNA Data Bank (NDDB). Unlike other free and democratic countries that take DNA on conviction or on charge for all serious offences, Canadian law requires a court order in all cases and classifies offences into categories with differing rules that govern when a court can make a DNA data bank order. This complicated system makes most offenders ineligible for making a DNA order and leads to mistakes and confusion so that many offenders who are eligible for DNA data banking are not ordered to provide a sample. Consequently, the number of DNA profiles in the Convicted Offenders Index (COI) of the NDDB is growing at only about 30,000 per year instead of the 100,000 if DNA were taken from all offenders.
I am a retired Department of Justice counsel. For 15 years, I was counsel to the RCMP. My files included DNA and I was closely involved in the creation of the (NDDB), which included developing international DNA sharing agreements in accordance with Canadian law.
I appeared with Richard Bergman, Chairperson of the National DNA Data Bank Advisory Committee, Hon. Peter Cory, former Supreme Court Justice and a member of the Advisory Committee, Greg Yost, Counsel, Criminal Law Policy Section of the Department of Justice and Dr. Ron Fourney, Director, National Services and Research, RCMP, as expert witnesses on the Statutory Review of the DNA Identification Act by the Standing Committee on Public Safety and National Security.
In the event that the results of the statutory review and the unanimous recommendations of the Standing Committee made in June 2009 have not been brought to your attention, I would like to emphasize the significance of the key recommendation, which was:
The Committee recommends that the DNA Identification Act and related laws be amended to systematically require the taking of a DNA sample upon conviction for all designated offences. However, before proceeding with the amendment, the government must provide the NDDB with the additional resources required to accommodate the increased demand for DNA analysis that would result from taking DNA samples automatically upon conviction.
The Government of the day accepted the recommendations:
The recommendations made by the Standing Committee are acceptable in principle to the Government. The Government will therefore consult with the provinces, law enforcement and other stakeholders on a priority basis with a view to developing a consensus on how best to proceed.
The Standing Committee of the Senate on Legal and Constitutional Affairs also undertook a review of the DNA Identification Act. I also appeared before that committee as an expert witness. The Standing Committee issued its report in June 2010 and the key recommendation again was:
That the Criminal Code be amended to allow for the immediate and automatic collection of a DNA sample from any adult who has been convicted in Canada of a designated offence as defined in section 487.04 of the Criminal Code.
The Government of the day noted that the recommendations of the Senate Standing Committee were "in broad agreement'' with those made by the House Standing Committee and the Government claimed to be "actively consulting'' with law enforcement, the provinces and stakeholders on implementing the recommendations.
My recollection is that consultations began and there was unanimous support by provinces and all stakeholders except, of course, the defence bar that DNA should be taken from all adults convicted of an indictable offence. However, nothing was done as the previous Government refused to provide the money necessary to expand the NDDB to be able to process the large increase in samples it would have to analyze for uploading to the COI.
To be blunt, this refusal to make greater use of the NDDB may have caused thousands of Canadians to be murdered, raped, robbed and otherwise victimized by persons who would have been caught earlier in their criminal careers had there been automatic taking of DNA on conviction. I urge you to implement the recommendation.
Based on the experience of other countries, I believe that the cost in implementing the recommendation will be less than it would have been in 2010. Unlike fingerprints which are taken every time a person is charged with an indictable offence, DNA is only taken once. The COI has more profiles now than when the calculations of costs were made. Accordingly, we can assume there will be more persons convicted who would not have to be sampled as they will already be in the COI. While there will be some additional costs for the NDDB and presumably for provincial and federal corrections who will have to deal with persons who were convicted who would not otherwise have been detected, the benefits to Canadian society far outweigh these costs.
Once the legislation authorizes taking DNA automatically on conviction, I urge you to have your officials to further authorize that DNA be taken on arrest and allowing the NDDB to be searched for familial relationships as is the practice in England and in most of the American States. If DNA was taken on arrest it would have even greater benefits than taking DNA only after conviction as it would lead to early identification of offenders. As the US Supreme Court found in Maryland v. King upholding taking DNA on arrest:
The DNA collected from arrestees it is an irrefutable identification of the person from whom it was taken. Like a fingerprint, the 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug test can by itself be evidence of illegal narcotics use. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee's face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee's fingerprints to those recovered from a crime scene.
In addition to the public safety benefits that were identified by the U.S. Supreme Court, the cost of the current system to the courts and law enforcement agencies who must apply for, make and enforce the DNA collection orders, could all be avoided if DNA was collected at the time of arrest.
Familial searching consists of checking whether there is a close relative of the perpetrator of an offence in a DNA data bank by using essentially the same kind of analysis as is used regularly in paternity testing. The benefits of familial searching have been repeatedly demonstrated in solving the most heinous crimes. Familial searching was pioneered in England and used to identify the serial Stiletto Rapist. Recently, it was used to identify the Grim Sleeper in Los Angeles. Familial searching could also be useful, for example, in solving murders along the Highway of Tears.
With the object of bringing Canada into line with international standards that maximize the public safety benefits of DNA technology, I urge you to revisit the Standing Committee's Reports.
Sincerely, David Bird.
The Chair: When did you write that letter?
Mr. Bird: June 2.
The Chair: No response?
Mr. Bird: I have not heard one yet.
The Chair: We will begin questions with the deputy chair, Senator Baker.
Senator Baker: Thank you Mr. Chair and thank you Mr. Bird for your presence here today and for the courage that you have displayed in this matter.
We read case law and we examine case law in this committee on delays. And we note that the reason why we do not have DNA samples automatically taken for serious crimes is because of a section of the Criminal Code, and I want you to verify that it's 487.051(2), which says:
However, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest . . . .
In other words, this is for primary designated offences. You pointed out that primary designated offences include murder, terrorism offences and so on, yet it's not automatic. Under the Criminal Code, the order can't be made for the DNA. There's an argument there. Then, as we've seen in case law, this goes up to the Superior Court in Ontario, Court of Appeal. There's a recent Alberta Court of Appeal case of kidnapping, where the question was: Should a DNA order be granted?
That's for primary designated offences — I'd like for you to verify that — in the Criminal Code, not talking about secondary designated offences. You've been a lawyer for the RCMP and for the Department of Justice. Are we correct in our assessment that for primary designated offences in Canada, this procedure exists in the Criminal Code?
Mr. Bird: Yes, senator. To the best of my understanding, that's exactly what it reads.
Senator Baker: This is being dealt with in our courts. A court procedure at a lower court in Alberta has gone to the Superior Court in Alberta, then to the Court of Appeal in Alberta, concerning a kidnapping case. Finally, the Court of Appeal says, "Yes, you've got to issue the DNA sampling.'' But the waste of time that takes in our courts for primary designated offences, do you agree with that? Well, that's your whole point.
You want to go further than that and you want to go to secondary designated offences as well, as I understand it. But is our understanding correct, what we read in case law, that this defence exists for DNA for the worst crimes that can be committed in this country?
Mr. Bird: My understanding is exactly that. The discretion exists for the courts to decide not to issue an order in certain circumstances.
Senator White: Thank you, Mr. Bird, for being here today. My first question will talk about testing of firearms. We have had CIBIN, which is the Canadian Integrated Ballistics Identification Network, since about 2004. Arguably, a police agency that seizes a weapon used in a crime or seizes brass or a bullet from an unknown scene — in other words, somebody test firing in the back of a parking lot — can enter those into the CIBIN network, but we do not have an obligation in Canada for police agencies to do that. The vast majority of agencies don't do it. And in fact, if they did, the RCMP would say they don't have the resources to upload them into the system anyway.
Not unlike your argument around DNA, we have another system that is as good as a fingerprint: It's the fingerprint of a weapon. In fact, homicides have been solved in this country specifically because some agencies — like Edmonton and Calgary, in particular — upload those regularly.
Don't you believe that we should also have an obligation for police agencies that seize firearms as a result of a crime, or the evidence from that, that they be obligatorily uploaded to that same system?
Mr. Bird: Senator, I guess I would agree that the more we can do to assist the police to solve crimes by forensic analysis, by whatever means, should be followed up. In fact, I would argue that DNA can be useful in forensics related to ballistics and firearms because there's often DNA attached to the firearm or the shell casings that can be linked to the crime scene and the perpetrator. DNA can be extremely powerful, as well as the other ballistic evidence that can be gathered.
Senator White: Exactly. That's where I was going next, is the fact that we've come a long way in the last 15 years. DNA is now molecular. From a fingerprint on a steering wheel of a car, we can extract enough DNA to positively identify something. However, we are instead still using what we learned in 2000 or 2003 to bring evidence to court. We haven't taken that next step, and that's about resources. That really isn't about the ability; it's about capability.
Mr. Bird: I agree. My impression is that the limiting factor in our system is essentially resources, and that DNA is limited to designated offences to be uploaded to the Crime Scene Index. That raises the question why. I can't give you a good explanation. But when the system was originally put together, it was a perfect system. The perfect system consisted of a warrant scheme with 32 listed offences, including murder, sexual assault, kidnapping — serious offences — and the designated offences that could be uploaded to the Crime Scene Index were limited to those original primary offences. And the DNA Data Bank orders that the courts could issue were limited to the same offences. It was a perfect circle.
What it did was limit the costs that the police forces would incur in doing DNA analysis at crime scenes to only those. Those were the limited factors. As that expanded, there was a definite resource push by provincial attorneys general to try to finance from the federal government greater resources to assist them in doing their DNA analysis of crime scenes. You have these biology casework agreements with Ontario and Quebec where they actually get paid some money to help them populate the Crime Scene Index.
The end result of that, though, is that with police service agreement or contracts provinces are paying a share to have their DNA analyzed by the forensic labs that the RCMP run, and those costs are a deterrent to them. In fact, I can tell you from personal experience that I was in New Brunswick when we were trying to roll out and implement the original DNA Data Bank legislation, and we learned from the prosecutors that they were instructed not to ask for DNA Data Bank orders because they thought they were paying for the analysis, which is separate analysis; it's done by the National DNA Data Bank at no charge to the provinces. But they didn't understand it, so they were putting a cap on what was being asked for by their prosecutors.
That misunderstanding and that chill, I think, is one of the fundamental problems that has to be broken — broken in the sense that this knot has to be cut. We're tied up in that this is a criminal law matter, and therefore the federal government is responsible for helping fund that. And the federal government seems to be saying, "No, we're not going to do that. If the provinces want it enough, they will have to fund it themselves.''
Until we get some progress around that particular discussion, this would be my explanation why nothing has happened for the last five years.
Senator White: Thank you for that. We had a witness last week from the RCMP. He runs FSIS, the Forensic Science and Identification Services. It used to be identification and information services, within the national police service, and it used to be that was federally funded. In fact, they started running deficits in about 2004 or 2005, of a couple of million a year. My understanding is that it was last in excess of a $10-million deficit. He explained to us that they don't have a deficit anymore because now they're billing more to the provinces and police agencies. There's not a police service in this country that isn't hard-pressed to meet their budget this year.
You're absolutely right; when they have a stolen car and a hit and run, they're not seizing DNA from the steering wheel and sending it in, because they will be billed for running the first analysis on that. So crimes are not being solved as a result of that.
Ultimately, "national police service'' means it's a federal service. But right now it's a federal service being funded locally, which means if the locality doesn't have the money, then guess what? It's not being investigated thoroughly.
Mr. Bird: I would encourage senators to follow up and find out exactly why the funding problem exists in terms of crime scene analysis and the reluctance. When I left the RCMP, there were about 99,000 crime scene samples in the Convicted Offender Index. Certainly a lot more than 99,000 crimes have been committed in the 10 years since the DNA Data Bank legislation was in force. It's a very small fraction but, yes, many crimes are solved without DNA. If you want to avoid wrongful convictions and you want to shorten court times, if you can bring DNA into the courts, you have the best evidence, or the gold standard. It's not identification or visual identification. It's not hair and fibre anymore. It's not a microscope. It is DNA. If you can't meet that standard, you have a problem.
I think that is why I'm here today, to assist you to say: Look, we have to focus on certain issues. One of the things you should focus on is the convicted offender index and how to get that working properly. My view, for what it's worth, is that if justice is delayed, for most people it's denied. If you had DNA at a crime scene taken by the police today and nothing was matched in the DNA data banks, convicted offenders index, the perpetrator was unknown, but that perpetrator was arrested today and he was brought in before to face charges on an unrelated offence, it may be four or five years before that conviction is registered, four or five years before victims would have knowledge that this perpetrator has been brought to justice, and it would require a separate trial. So the court system, instead of having that information up front about how related this person was to other offences, would have to reinstitute further charges, bring them back and run more court cases.
So the court cases will drag on. You will end up with a system where it's encouraging offenders to delay their conviction, to put them off, because if they suspect their DNA is at a crime scene, they may be able to avoid, by pleading down or by some oversights which we see in the system, having their DNA collected at all.
My sense is we should be taking this information at the time of arrest and I strongly encourage that. That would mean that you would not only have positive identification linked to other crimes but also that person isn't going to go out on bail, particularly if he's found to be associated with serious offences, and potentially victimize other people. It's a public safety issue.
Frankly, I can't tell you what offences have greater indices of criminality than others. My sense of most sociopaths is that they don't care about the law and they're committing minor offences, shoplifting and other offences at the same time they're doing more serious offences, sexual assaults other offences.
I gather the terrorists in 9/11 were stealing baby formula from convenience stores and other places and selling that to fund their attack on the World Trade Center. That's a minor offence, shoplifting in convenience stores, but if that could have been linked, who knows what that might have saved.
I can't predict it, but all I can suggest is that as much DNA as can be reasonably afforded to be collected both from convicted offenders and from crime scenes should be, for the protection and well-being of all Canadians. It is not only the victims getting earlier justice but protection of the whole society.
Senator McIntyre: Thank you, Mr. Bird, for your presentation. As I understand your position, it's very clear. DNA should be taken on arrest and not, as recommended by the defence bar or some other stakeholders, taken from all adults convicted of an indictable offence. That said, have you received much support for your recommendation?
Mr. Bird: I have very little support, in the sense that this is quite an adversarial process. It has been adversarial from the beginning. I'm sitting in the chair Mr. Newark sat in. Mr. Newark, when he was representing the Canadian Police Association, was a fervent advocate of taking samples at the time of arrest. The Department of Justice in its infinite wisdom at the time had three judges come in to the committee hearings to say that they believed that that may be unconstitutional and contrary to the Charter.
Subsequent to that, in the Supreme Court of Canada Rodgers decision, which is referenced here, Justice Charron basically said that you should be able to equate DNA as the modern equivalent of the taking of fingerprints, and fingerprints are taken at the time of arrest. So my only caveat to what I'm suggesting today, rather than to say, "Let's go full-scale to time of arrest'' is that the system probably isn't ready for that, that the recommendations you've made to take it from on conviction of all primary offences or all Criminal Code qualifying offences, indictable offences, would be a way station to make some progress, get that out of the way, and then ask the officials to come back with a scheme to examine how to do this best at the time of arrest.
Canada, I can tell you, has some of the best DNA privacy protections in the world. Our system of collection and then sending the DNA profiles to the National DNA Data Bank with no personal identifiers, simply what they call a Sample Unique Number, was groundbreaking. But it also meant that when it comes to sharing DNA internationally and complying with the requirements in the Criminal Code for that, we can work well with European partners who are subject to their own privacy laws and exchange things on a limited basis, which will assist in international investigations, which can be extremely significant.
If you have a criminal who is showing up in several jurisdictions, that has many red lights. It could be sexual predators who are travelling. We've had that between Canada and the U.S. It could be terrorists; it could be international criminals involved in drugs, arms, any sort of gang affiliation or organized crime.
Senator McIntyre: On that last point, I understand that you have studied the DNA legislation in other countries. For example, in your report you refer to the practice in England and in most of the American states. Could you elaborate a little on that, please? How helpful would the DNA on arrest be?
Mr. Bird: One of the references in my letter was what they called the stiletto rapist. The stiletto rapist was a U.K. investigation. The U.K. has always taken DNA on arrest for what they call "recordable offences,'' and that's a broad range of possible things. On this particular case, it was an arrest for a woman who was driving under the influence, under their laws, and they were able to match her DNA to a crime scene, a rape scene, but she's a female. It wasn't a perfect match; it was a familiar match. That led them to suspect that it was a close relative. It turned out to be her brother. That stopped a serial rapist who collected stiletto shoes from the victims of his sexual assaults.
There are many instances where the British system has picked up people and associated them to crimes on very small but unrelated matters. There was a truck driver throwing a brick off an overpass and his DNA was on a brick. They were able to match him to his brother's offence as well. These are simple, small offences. The point I want to make is that you can't predict what lesser offence would lead to more serious offences and being connected to.
Is there a problem? With our DNA, the U.K. and the U.S., it's all anonymous profiles, loci from 13, 16 or could be 20, if we could go to it, which don't code for anything. If you have my DNA profile, all you have is a series of random numbers. It doesn't tell you about what kind of hair I have, what kind of eye colour I have. It doesn't tell you my race or any ethnicity. It's simply an identifying feature. In fact, DNA is far less intrusive, in my view, from a privacy point of view, than any sort of mugshot or photograph. Photographs tell you a tremendous amount about a person. DNA tells you almost nothing, but it does identify you, on one chance in a billion, from someone else. If you leave it at a crime scene, you are going to be very hard put to explain why your DNA is there. If you can explain it, you're going to be acquitted, but, if not, you're going to be a person of interest.
Senator Batters: Thanks so much, Mr. Bird, for coming to our committee today and for providing us with this crucial information for our study and for Canadians. To me, it's absolutely shocking that you took this courageous stand to send this letter to Minister Goodale, Minister of Public Safety, in June, five months ago now, in which — I just want to reread this short paragraph:
To be blunt, this refusal to make greater use of the NDDB may have caused thousands of Canadians to be murdered, raped, robbed and otherwise victimized by persons who would have been caught earlier in their criminal careers had there been automatic taking of DNA on conviction. I urge you to implement the recommendation.
Despite seeing that, there's still no response, five months later. We hope to have Minister Goodale appear before this committee on this particular study. Believe me, I am going to be asking about that particular issue, and I hope that somebody in his office sees this testimony today and takes note of that. It would be great if they would get you a response, hopefully before he even appears before this committee.
I'm wondering if you happen to know: Each new minister, when the Trudeau government came into office, received a mandate letter from Prime Minister Trudeau. Prime Minister Trudeau provided Minister Goodale with one for his particular department. I'm wondering if you happen to know if this particular issue of the DNA Data Bank was contained in that mandate letter?
Mr. Bird: I'm afraid I have no knowledge. I've been retired for five years, so no one has been talking to me about what's going to the minister.
Senator Batters: They are public, so I will have a look at that as well to see if that is contained. If it isn't contained, it seems like quite a crucial issue for that particular ministry. If not, we will be asking the Trudeau government why not. Thanks very much again.
Senator Baker: Witness, as a minimum for this committee, in its recommendations on court delays, would you agree that we should remove this section from the Criminal Code that we read earlier, at 487.051(2), that gives a defence to the taking of a DNA sample from somebody who has committed a primary designated offence, which includes murder and kidnapping and rape and some of the worst crimes in Canada? There's a defence there that has tied up our courts on appeals. Would you recommend, apart from the general question, that we recommend that this be removed as a defence under the Criminal Code?
Mr. Bird: I would recommend that it be removed, and I would go much further. I'd recommend that, for the entire DNA Data Bank system, the warrant scheme should remain in the Criminal Code, but everything else should go into the Identification of Criminals Act or the DNA Identification Act as an administrative process, like fingerprints are.
Senator Baker: Would you also verify that, upon arrest, which is what you're talking about, if somebody is arrested and it's a hybrid offence, such as impaired driving, assault and so on, and they're charged and then they're released, it can be prosecuted summarily or by indictment? The next day they have to show up at the police station, under the Identification of Criminals Act, to be fingerprinted and photographed although it's a hybrid offence. That is the law that we have in Canada. Can you verify that?
Mr. Bird: I can't, off the top of my head, give you whether that's exactly —
Senator Baker: I can. This is the case. It backs up what you say, that here we have a photograph and fingerprints that are taken automatically for every hybrid charge laid in this country. If you wish that to be removed, if you're declared innocent, then you make application. You apply to have it removed. My question to you is this: Can you give us a comparison between Canada and other countries on any elements of your submission?
Mr. Bird: In the U.K., as I said, it was all recordable offences, and they kept their records, until recently, indefinitely. They had to change that due to a challenge to the U.K.'s constitutionality in the European Criminal Court, which said that keeping those records in that manner was unconstitutional. So they put a time limit on the retention of that information, but, until that point, they didn't.
The U.S. is similar. Most states have gone to time-of-arrest. They've expanded it to cover DNA collection from certain immigrants as well. They're seeking to ensure their identity. The taking and keeping of the records is an issue. It's an issue with DNA and fingerprints. I would suggest that this committee have witnesses come forward and talk about how this would be potentially integrated into a time-of-arrest scenario. I did overhear the discussion today about whether or not you should have charge screening, and that affects the taking of fingerprints. That issue needs to be resolved as well. I would encourage the Senate to take a look at that at the same time. But, as a way station now, I would think at least change the Criminal Code, which could easily be done, to say DNA will be taken automatically on conviction. No more discretion; it simply follows that that will happen.
Senator Baker: One caveat: The Identification of Criminals Act — you're absolutely correct — specifies for indictable offences. You're absolutely correct. But a hybrid offence, when charged, is considered to be indictable for the purposes of the Identification of Criminals Act. That's the law in the country.
Thank you so much for your representation here today that we remove that defence for primary designated offences as a first step in the evolution of DNA.
Senator White: Thank you very much. This might be a little bit repetitive; I'm going to apologize. It's just because there are people who might be listening to this who are trying to get their head around this, and, of course, there's always fear mongering when it comes to the letters DNA for some reason. Today, we have about 3.5 million criminal prints, prints taken from criminals in Canada. We have about 35 million latent prints taken from crime scenes in the country, and we compare latent prints against criminal prints continuously in our system. It's called AFIS. It continuously runs those to see whether or not a known criminal committed other crimes. Your discussion today is that we should do exactly the same thing for DNA. We have the capability. We have the DNA Data Bank. In fact, we do it for some crimes, some criminals, but not all crimes and all criminals. That's really where we should get to. If we want to stop people in their tracks, before they go down the path of committing other crimes, this might help us to do that.
Mr. Bird: I'm in 100 per cent agreement with you.
Senator McIntyre: Mr. Bird, in going over your paper, I note that you're saying that there were recommendations made by both the Standing Committee on Public Safety and National Security and the Standing Senate Committee on Legal and Constitutional Affairs. This was followed by consultations with most of the stakeholders in the provinces. The stakeholders in the provinces show unanimous support except the defence bar. What kind of support are you talking about? Are you talking about support for the DNA on arrest?
Mr. Bird: No, I'm not. I'm talking about the support for the recommendations that the two standing committees made to take DNA on conviction.
The time of arrest is a far more contentious issue, but obviously law enforcement interests are strongly advocating that and have done so from the beginning. Various groups have said that they're concerned about the privacy implications of that particular approach.
I have heard witnesses who are advocates for offenders — the John Howard Society and Elizabeth Fry Society — all worried they would be stigmatizing people unduly by taking their DNA and leaving it in the DNA databank.
There is a large policy debate ongoing. I'm encouraging that to continue. We are an outlier in the international scheme of the U.K., U.S., closer partners in DNA sharing, and they are quite bemused, to put it bluntly, about the way the Canadian system works. They have all evolved to a time-of-arrest, all-offences system. We haven't.
Why are Canadians not given the benefit of early detection as opposed to this post-conviction scheme that now exists?
Senator McIntyre: In hearing you, it seems that the biggest obstacle you have to your proposition is that it's not Charter-compliant?
Mr. Bird: That was the earlier problem. Until we had the Rodgers decision and the 4-3 split of the Supreme Court that said the DNA itself did not raise that kind of Charter concern and did speculate we could go to time of arrest, and they could consider it. It's obviously not a slam dunk until someone challenges it, but we can, if we set up the right privacy regimes, deal with the records, show this is not an invasion of privacy, and there are reasonable controls on the international standard that has been looked at in the U.S. Supreme Court and found to be justifiable. We can probably win that.
It's my view you need to talk to the Department of Justice human rights lawyers about their current views.
The Chair: Thank you, Mr. Bird. That was very interesting and helpful testimony. Who knows, it may get you a response to that letter. Let's hope so.
(The committee adjourned.)