THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 9, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:47 a.m. [ET] to study Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: My name is Brent Cotter. I’m a senator from Saskatchewan and chair of the committee, and now I’d like to invite my colleagues to introduce themselves, beginning with the deputy chair.
[Translation]
Senator Boisvenu: I am Pierre-Hugues Boisvenu, and I represent the senatorial division of La Salle, in Quebec.
Senator Dalphond: I am Senator Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec.
Senator Dupuis: I am Senator Renée Dupuis, and I represent the senatorial division of The Laurentides, in Quebec. Welcome.
[English]
Senator Klyne: Good morning and welcome. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
Senator Prosper: Hi there, Senator Paul Prosper, Nova Scotia, land of the Mi’kmaq people.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Dagenais: I am Jean-Guy Dagenais, and I represent the senatorial division of Victoria, in Montreal, Quebec.
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Jaffer: Welcome. Mobina Jaffer from British Columbia.
The Chair: Thank you, colleagues. I want to extend a welcome to Senator Dagenais, who is joining our committee today.
Honourable senators, we’re meeting today to begin our study of Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act.
For our first panel, the committee is pleased to welcome three presenters: Greg Yost, retired counsel from the Department of Justice Canada; David A. Bird, retired counsel from the Department of Justice Canada and, for Senator Prosper’s information, yet another graduate of the Schulich School of Law at Dalhousie University; and Christopher N. Maguire, Forensic Scientist, ForGenetica Consultants Ltd. Mr. Maguire is joining us by teleconference. Welcome, witnesses.
I think as you have been advised, gentlemen, we will invite each of you to present opening remarks of approximately five minutes each, and that will be followed by questions and conversation with senators. Mr. Yost, I’ll invite you to start.
Greg Yost, Retired Counsel, Department of Justice Canada, as an individual: Honourable senators, I began to work on the DNA file in the Criminal Law Policy Section of the Department of Justice in 2002 and became lead counsel on the file in 2006. In June 2009, the House of Commons committee studying the DNA legislation made its report. One year later, this committee made its report.
The unanimous recommendation of both committees was that taking DNA from all persons convicted of a designated offence should be automatic. The government of the day accepted both reports, and I fully expected to cap off my career by developing legislation to implement the recommendations and then retire. I thought this would take at most two years. How naive I was.
I thought that tabling a bill in the Senate would get the government’s attention, and this bill would be superseded by a government bill in the House. Again, I was naive. I truly cannot comprehend why successive governments have ignored the recommendation to make taking DNA automatic.
[Translation]
The benefits of the automatic collection of DNA are obvious. It’s a numbers game: the more profiles in the Convicted Offender Index, the more likely a match. It is simply impossible for the prosecutor, who must decide whether to request an order authorizing the taking of a DNA sample for analysis, to know whether the person charged has committed, or will commit, other offences. If the prosecutor applies for the order, the judge can’t know whether the convicted offender has committed other offences.
Under the current system, convicted offenders who have committed serious crimes will inevitably not be required to provide a sample.
Imagine if the highly respected Colonel Williams had been accused of impaired driving. Would the prosecutor have proceeded by indictment in order to apply for the order? No. The answer is clear: the automatic collection of a DNA sample.
[English]
Similarly, the benefits of familial searching have been shown around the world. The technique led to the detection of the man known as the “Grim Sleeper” in Los Angeles, who murdered at least 12 women, and the “stiletto rapist” in the United Kingdom, who pled guilty to 6 rapes but probably committed more than 50. Surely, the families of murder victims, like the Indigenous women killed on the Highway of Tears, and the victims of rape, armed robbery and indeed all violent crimes have a right to demand that we use every tool to find the perpetrators and bring them to justice.
Familial searching has now resulted in thousands of convictions. The ones I referred to are about 15 years old now.
The third major provision in the bill is to require the Minister of Public Safety to conduct a study of taking DNA at the same time as fingerprints. This is the law in other free and democratic countries, including the United Kingdom and most of the states in the United States of America.
[Translation]
Such a procedure would make it possible to find out as soon as possible whether the person’s profile matched a crime scene profile. That could lead to efficiencies. For instance, the DNA of a person accused of a break and enter could be a match for a perpetrator who had committed numerous minor offences. All of those cases could be linked, instead of learning about the match after the person was convicted, which would require that a second trial be held.
[English]
Where there is a match to serious crimes, presumably the court would not release the person until it was determined whether that person was responsible for those crimes.
Most importantly, it would result in a match to heinous crimes. Thousands of crimes have been solved because a person was arrested for a relatively minor offence. In the United Kingdom, a person was caught stealing a bottle of liquor worth maybe £20. His DNA matched the DNA of a murderer. I don’t believe they bothered prosecuting the petty theft charge.
[Translation]
Governments have done nothing to implement the improvements that have been unanimously recommended for 14 years, despite the huge benefit to public safety. Therefore, I think it’s reasonable to require the minister to conduct a study.
Thank you.
[English]
The Chair: Thank you, Mr. Yost. Mr. Bird, please.
David A. Bird, Retired Counsel, Department of Justice Canada, as an individual: Mr. Chair, honourable senators, thank you for inviting me here to discuss the effectiveness of our DNA legislation. I am pleased to be before the committee today, as I have also had the same privilege on three previous occasions.
I’ve worked on the DNA file as a lawyer at the RCMP Legal Services from 1995 until I retired in 2011. I met Greg Yost in 2002, when he joined the Criminal Law Policy Section of the Department of Justice, which was responsible for DNA law. While I’m happy to be here with my friend Greg, which I hope will have a positive impact on moving the bill ahead, I am disappointed that these much-needed amendments have been shelved for so many years.
In our joint brief, Greg and I explained that Canada has one of the most complicated systems for taking DNA. The courts must consider a Byzantine set of rules before they can make a DNA data bank order on conviction.
Compared with other similar democratic countries, the result of these limitations is that our National DNA Data Bank, or NDDB, has a very low percentage of offenders. As of July 15, 2023, there were 445,000 profiles in the Convicted Offenders Index and about 1.3% of the Canadian population. This is very small by international standards.
On page 6 of Mr. Maguire’s brief, we see that the United Kingdom’s database has about 5.8 million profiles, about 9% of the population. The result is that the U.K. database averages 22,000 matches in a year, while the Canadian National DNA Data Bank averages 6,000.
According to my recent search of the United States’ National DNA Index System, as of November 2022, they had over 15 million offender profiles, close to 5 million arrestee profiles and over 1 million forensic or crime scene profiles in their data bank.
As of November 2022, the U.S. Federal Bureau of Investigation’s Combined DNA Index System, the CODIS, and the National DNA Index System, NDIS, have produced hits that assisted in more than 600,000 investigations.
I cannot help but think of the delays and denials of justice that might have been avoided if the police and courts had been able to make greater use of the Canadian DNA data bank’s potential to solve crimes, exonerate suspects and apprehend repeat offenders.
Canada’s Convicted Offenders Index is growing at a snail’s pace of approximately 17,500 profiles a year. Our statistics show that in the pre-COVID year 2017-18 there were over 240,000 convictions in Canadian adult criminal courts. If we make almost all Criminal Code convictions result in an automatic DNA order, it is obvious that the number of DNA profiles from convicted offenders will increase dramatically.
We estimate that in the first year after Bill S-231 has passed there should be at least 100,000 new profiles uploaded to the Convicted Offenders Index, which is about one half of the expected annual convictions. It will still take years to become as effective as the U.K. and U.S. databases, but we will never get there if we don’t start taking DNA from virtually all convicted offenders now.
When I appeared before the committee in 2016, I said:
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.
This was quoted in the committee report, which reiterated its 2010 recommendation that DNA be taken automatically. I believe that assessment is still true.
My last regret is that our DNA collection will still be ordered post-conviction and not taken at the time of arrest.
Again, I urge you to implement your recommendation and adopt Bill S-231. Thank you.
The Chair: Thank you, Mr. Bird.
Christopher N. Maguire, Forensic Scientist, ForGenetica Consultants Ltd., as an individual: Mr. Chair and honourable senators, thank you for the opportunity today to appear before you. My name is Chris Maguire. I’m currently assistant professor in forensic biology at the University of Bradford, having gone back to work from retirement.
I’ve been a forensic biologist for over 40 years. I joined the Forensic Science Service, FSS, in 1981, and I have been involved in DNA profiling and its techniques since its inception as a case work technique in 1987. I specialized in forensic case work, particularly in relationship analysis and human identification for missing persons and disaster victim identification. I was also involved in the development and commercialization of various DNA expert systems and DNA database software. I worked closely with the Forensic Science Service’s intelligence bureau as they undertook familial searching case work in the 1980s and 1990s.
After the closure of the FSS, I went to Northumbria University Centre for Forensic Science as a senior researcher. One of my major projects was a review of the forensic science delivery in Canada on behalf of the Ministry of Public Safety and Emergency Preparedness. The project report was completed in 2012, entitled A Feasible and Sustainable Model for Forensic Service Delivery in Canada.
During that time, I saw most of Canada and all of the forensic provision for the RCMP, for some private companies, for Montreal and for Ottawa.
After that, I went off to America and was the Deputy Director of the Department of Forensic Sciences in Washington, D.C., until 2015.
I then continued my association with Canada after my retirement, and in 2018 I was tasked with the preparation of a discussion paper for the RCMP Specialized Policing Services. That was called “Familial Searching in Canada Using the National DNA Data Bank.” The report was intended to encourage discussion and debate around the societal — so privacy and ethics — legislative and governance considerations that would assist in the development of recommendations on the use of familial searching of the data bank for the Canadian criminal justice system. That was six years ago. I’m pleased that we’re at least back discussing it again.
To turn to the U.K., “familial searching” in the National DNA Database is defined as:
. . . an intentional or deliberate search of the database conducted after a routine search for the purpose of potentially identifying close biological relatives of the unknown forensic sample associated with the crime scene profile.
It has been put to me that looking for familial searching is actually looking to see if I can find someone in the database who might be related in some way — as a parent, child or sibling — to the person who left the crime scene stain. It was also put to me that, effectively, I’m using innocent people’s DNA. Everyone in that database doesn’t match that crime scene stain, so they’re all innocent of that particular event, but we’re checking if there could be someone in their families, as defined relatives, who could be. It’s an investigative technique.
It is based on the fact that related individuals are more likely to share their DNA characteristics than those who are unrelated. Parents and children share their alleles, their data sets, in particular ways.
There’s a plethora of legislation governing the use and operation of the National DNA Database, but in the U.K. there is no legislation governing the use and operation of familial searching as a technique. It was developed because of a technical pull. The science could do it. For that reason, there is a huge governance process in place. This developed as the technique evolved.
The familial searching is highly regulated. We have governance and oversight by what is termed the Forensic Information Databases Strategy Board, which is made up of members of the National Police Chiefs’ Council, the Home Office, the Association of Police and Crime Commissioners, and the Biometrics and Forensics Ethics Group — a group who are independent and advise the Home Office. We also have the Information Commissioner and the Forensic Science Regulator involved in this board. The Forensic Science Regulator, since October 2023, has statutory powers to establish quality standards in forensic science. There’s a statutory code of practice, and it must be complied with by those undertaking any forensic science activities. That’s the police, scene-of-crime officers, forensic science providers and so on.
When do we use familial searching? In very specific cases. In criminal case work, it can only be authorized for serious cases including murder or manslaughter or rape and other serious sexual offences and offences involving children.
It’s used to investigate the most intractable cases and to restart or reinvigorate cold cases or stalled cases. It provides an added-value intelligence service to the criminal justice system, and it can find individuals involved in potential crimes who otherwise would not be linked to those crimes through the National DNA Database.
Familial searching is also authorized for the identification of recovered human remains in certain cases, missing persons cases and mass fatality cases, where, under those circumstances, people supplying the control samples, the family members, have to give their permission.
I’m pleased to see the proposals contained within the current Bill S-231, An Act to amend the Criminal Code, the Criminal Records Act, the National Defence Act and the DNA Identification Act. I hope in passing this bill, the size and the utility of the Canadian National DNA Data Bank will increase, and the DNA profiling or DNA data bank processes will be simplified.
Like Mr. Bird, to make the system even more efficient, I would suggest that further consideration be given to the taking of a DNA sample, and fingerprints for that matter, from a suspect on arrest rather than by a judge’s order. The DNA profiles and other records obtained in such sampling could be deleted if the legal processes were to be abandoned or if the case did not progress to court or the suspect was acquitted. In that way, at least you would be able to check those samples from a suspect arrested for a particular case against those that are currently undetected within your Crime Scene Index.
I have some concerns that the committee and some of the contributors to your deliberations confuse or conflate the two techniques: the forensic investigative techniques of familial searching of the National DNA Data Bank and another technique called “genetic genealogy,” which uses DNA systems that can’t be compared to the National DNA Data Bank data sets. It utilizes private, direct-to-consumer DNA testing and private DNA data banks. I don’t want those conflated. They are two completely different techniques. I’m happy to assist you in your deliberations today. Thank you.
The Chair: Thank you very much, Mr. Maguire. We’ll now turn to questions from senators.
[Translation]
Senator Boisvenu: Welcome to the witnesses. Thank you for your informative presentations.
My question is for you, Mr. Yost. First of all, thank you for being patient. Have you read the brief that was co-written by professors Crawford and Clausius?
Mr. Yost: Yes, I read all the briefs.
Senator Boisvenu: In their brief, they refer to private companies. I always thought that the NDDB was a government-owned data bank, overseen in accordance with very strict access to information and privacy standards. I’d like you to say a few words about the brief submitted by the professors.
Mr. Yost: You’re absolutely right that the NDDB is a government data bank, overseen by the RCMP, which has counsel to advise on certain matters. If the bill is passed, I think police would start by submitting a request for a familial search in the NDDB, where convicted offenders are found.
It’s easy. It’s part of the FBI’s system, CODIS, which is used all over the world and especially in Canada. It may give them an investigation lead to follow. If that doesn’t work, nothing in the current legislation — and this has been tried a few times in Canada and a number of times in the U.S. — allows police to use 23andMe or other such data banks. For those data banks, individuals have sent samples of their own DNA for analysis. My understanding is that it is very complicated and expensive. A genealogist has to build a family tree.
It takes time, but it has yielded very good results. The Golden State killer, for instance, is a well-known case. A whole other system was used, one that’s completely different from our legislation. Privacy is nowhere near the consideration it is under the current system.
Senator Boisvenu: The Americans have a higher percentage of solved cases involving homicides, violent assaults and other serious crimes than we do, in Canada.
The U.S. has a much bigger DNA data bank, so does it allow for automatic entry? In the U.S., a person’s DNA is taken at the time of arrest to find out whether they can be linked to another crime. Are police more effective at solving crimes because the DNA data bank is so much bigger?
Mr. Yost: Absolutely. As I said, it’s a numbers game. A few years ago, I read that New Zealand’s solution rate and match rate was 70% for crime scene profiles in its DNA data bank. I can’t give you the current figure for the NDDB, but I think it’s around 20% or 25%.
Senator Boisvenu: Exactly. It’s about that. The solution rate is pretty high for family crimes such as domestic violence. However, in cases where the perpetrator is not known to the victim, Canada’s solution rate sits at about 20%, which is very low. That leaves a lot of victims high and dry, because the perpetrator won’t be arrested.
Mr. Yost: Yes.
Senator Boisvenu: Thank you very much.
Senator Dalphond: Thank you to the witnesses for being here.
I take from your remarks that an offender’s DNA cannot be taken for all criminal offences. A perpetrator’s DNA is taken only for certain types of offences, and only on conviction. However, we’re also hearing that it’s important to build a DNA data bank to help identify criminals and solve a lot of crimes. You mentioned New Zealand and the fact that it has a solution rate of 70%.
Why has a line been drawn between certain types of offences and others? Is it just to have a tool that is effective, confidential and well protected?
Mr. Yost: This is a question I’ve been asking myself for several years. At the very beginning, we built an extremely complicated system. There were primary offences and secondary offences. If I remember correctly, changes were made in 2006, creating two types of primary offences. There was a list of offences for which the judge had no possibility of refusing to do so, and another list of offences for which the person charged could try to refuse to provide a sample, convincing the court that the effect on their privacy was totally disproportionate to the administration of justice.
Then we divided the secondary offences so that there was a list where it was possible to proceed, notwithstanding whether it was done by indictment or summarily. We created what we call “generic secondary offences,” i.e., cases where crimes are punishable by indictment for five years or more. However, if it’s a hybrid offence, there must be an indictment.
I’ve handled a lot of cases involving impaired driving. There are 60,000 impaired convictions a year, 99% of which are summary convictions. You can’t apply in these situations. As Mr. Bird said when he provided statistics, that’s why increasing the number of profiles to 17,500 per year is ridiculous, in my opinion.
I can’t explain why we started this process. I’m a former public servant. There is client-solicitor privilege and confidential issues within firms. I would go so far as to say that I myself have never understood the logic behind it.
Senator Dalphond: We did a balancing act. There are certain types of offences that justify taking genetic fingerprints to try and find the culprit of a very serious crime — the victim’s cousin, brother, father or mother — but for other types of offences, we don’t try to establish this same link and the crime goes unpunished. I’m trying to understand the logic behind the creation of these categories.
Mr. Yost: If I may add a comment, senator, I would say that today we cannot try to find the brother or the son, for example. We can only make a request if there is an exact match. You can’t search by relationship. That’s what we’re trying to address with this bill.
Senator Dalphond: Thank you.
[English]
Senator Prosper: I have a couple of questions, one for Mr. Maguire for clarity, and later a follow-up to what Mr. Yost mentioned.
Mr. Maguire, you mentioned earlier — I forget the jurisdiction you were working with — that DNA samples were taken, or you recommended that they be taken upon arrest as opposed to court order. Is that correct?
Mr. Maguire: Yes, within the U.K., DNA samples, fingerprints and so on are taken upon arrest. If you are arrested for any offence, you are required to give your fingerprints and a DNA sample. However, if at some point the prosecution discontinues the proceedings or if you go to court and are acquitted, those samples and the DNA profiles and fingerprints associated with the things you have given have to be removed from those various databases. But, yes, they are taken upon arrest.
It simplifies matters so much. A sample is taken; the sample goes to a lab; the sample gets processed in a DNA database; the DNA sample gets uploaded. We have now in the U.K. — this is as of June 30 of this year — 5.9 million individuals in our database, which is 8.9% of the population. We have nearly 676,000 crime scene stains on the database, and the match rate is at 68% overall. Someone might be arrested for a relatively minor offence, and then you find that their DNA profile is one which has been recovered from another more serious crime. Those things can then be investigated.
Senator Prosper: Thank you, Mr. Maguire.
Mr. Yost, I believe you mentioned earlier in your testimony, or perhaps in your response to a question, something which I found quite interesting about the complexities of primary and secondary offences. There was a schematic in terms of the complexities. There was a point when you stated that the person can even dispute the taking of DNA from them by application to court. It seemed to be a balance between the privacy of the individual and, I would imagine, compelling reasons related to that as it relates to the administration of justice. I’m wondering if you can give further details where privacy could potentially trump the administration of justice. Thank you.
Mr. Yost: I’m not aware of any case in which an adult successfully argued that. I do remember a hearing where amendments were made when we brought this in, where a psychiatrist from the Ottawa Hospital said that for some of the paranoid schizophrenics, the idea that the government will have their DNA would be extremely bad for their mental health.
As I say, I’m not aware of any case. It’s a very high threshold you have to get over, which is grossly disproportionate to the public interest and the administration of justice.
When you put on the side of it that the privacy protections are world-class, other people have followed our system. The DNA data bank gets basically two pieces of paper: On this one, it has the order; and on this one, it has the conviction and the person’s name and all the rest of that. They just put the identical bar code on one of these. This one goes to analysis, and that one goes to the criminal records system.
When the DNA data bank gets a hit, they have no clue who it hit to. They have to send it over to the criminal record service, and they use the bar code to pull out the file and find out who we are talking about.
Somewhere in the DNA data bank, I am certain we have Karla Homolka’s DNA, but they could never find it on their own. We have world-class privacy protections, which are not going to be touched here.
That’s another very important item. The Supreme Court of Canada in the R. v. Rodgers case was very fulsome in their praise of the privacy protections that the National DNA Data Bank has. I think people can be reassured that there won’t be a violation of their privacy.
With familial searching, it is a little bit different because you are going to have people start looking for the brother or the son of the person who has been identified. That, again, is a balancing act. This legislation restricts it to the most serious offences, punishable by 14 years or more or life imprisonment, obviously. Yes, some people have the police knock on their door and investigate whether they are the right person. There are techniques that can be used to cut down the number that you will get. In particular, they can check Y-STRs, which are transmitted identically between father and son, so that would be the first thing you would do. If it is the same Y-STR, we know we aren’t talking about a third cousin or whatever; we’re talking about the son.
There will be some people who will have a knock on the door, but the police knock on people’s doors all the time for various reasons. Eyewitnesses may have pulled them out of a lineup, or someone may have seen a picture and said, “I think that’s him.”
It’s a balance. I believe the balance is appropriate, but that’s for you to decide.
Senator Prosper: Thank you.
Senator Simons: I’m not a paranoid schizophrenic, but I am disturbed by the idea that the state might have access to my DNA — or anyone else’s DNA — without very good reason. Yes, it would be more efficient if we had everybody’s DNA at the point of arrest for whatever trivial offence that might be. It would also be more efficient if we took everybody’s DNA at birth and put it in a register — wouldn’t that be a great way? We’d have everyone’s DNA available to solve crime.
I am a little disturbed when I read this legislation to see that it encompasses young offenders — including young offenders who receive a discharge and young offenders who are found not criminally responsible — and that it includes as a primary offence something that has a maximum sentence of five years, for which someone might not have received anything like five years. That’s a maximum. For something that is an indictable offence with five years, you might get far less than that.
Now, I assume all three of you seem pretty keen on the idea of taking DNA even at arrest, but does it not bother you that a young offender whose record is meant to be not expunged but kept confidential might be caught up in this and that their DNA might, in fact, be used to incriminate not just them but an extended family member?
Mr. Yost: Well, I guess that gets at the crux of the issue.
I would draw the line in a far different place than you would. I am very interested in catching murderers and rapists by any legitimate tool we can have. I mentioned missing and murdered Indigenous women. Those who are missing, we can’t do much about, but for those who have been murdered, Dr. Maguire’s report, I believe, had a list of a whole series of cold cases of murders where familial searching could be used.
Addressing the young offender issue, there was a challenge to the mandatory taking of DNA from young offenders when that was brought in for a certain list of offences. The trial judge found it unconstitutional. The Court of Appeal for Ontario, three to nothing, found it constitutional, looking at the balance that was there, the seriousness of the offence and the fact that it really doesn’t affect you in any way. It just sits there as a bar code until it matches a crime scene.
Regrettably, not every young offender is rehabilitated. Many of them go on to commit very serious crimes, and having their DNA will allow us to solve those crimes.
Again, I say that’s an issue of where the line would be drawn. This legislation says it’s the most serious offences, punishable by 14 years or more. It will not be used to try to find out who has been shoplifting at the 7-Eleven.
Senator Simons: But if you had been shoplifting at the 7-Eleven, it could be used to find someone down the family tree.
Mr. Maguire: Yes, it could.
Mr. Yost: I would not be terribly upset if my brother was found out to be a mass murderer. I would be surprised, but I don’t like mass murderers.
Mr. Bird: Senator, if I could add, from my perspective, I’ve always advised my clients, at least at the time, that they have a duty to try to provide the best evidence to the court about any conviction or case that they are investigating when they are laying their charges. The best evidence is going to be your DNA evidence.
Eyewitnesses, hair and fibre — police do get tunnel vision, and there are cases of wrongful convictions like Steven Truscott’s, where the police identified him, got a false confession of a young offender and brought that to court. But if they had had the DNA to eliminate this question of spurious or tunnel vision, wrongful convictions of young offenders who should not have been there — that’s the cost of not putting this kind of tool into the hands of the police, who have basically a very secure system and need to go through the hoops to bring it to the court. The court will have to accept that evidence when they bring it.
Up to that point, this privacy and security of the information is secure in the data bank as we have developed it.
Mr. Maguire: If I can chip in, like Canada, the U.K.’s DNA database samples are simply labelled with a bar code. The database team doesn’t see names. There is another team that sees the link between names and bar codes, and the two things have to come together when there has been a match.
I did put some case examples in, and the very first case was a triple murder. A man had raped and killed three young women in South Wales. Those cases were 1973. The murders were in 1973, and the first sample was run in 2002 — the first DNA familial search was run in 2002 — and it hit against a young man by the name of Paul Kappen. The police went to check on the family — and they do just have to go and investigate. In the U.K., the police are not allowed to do surreptitious watching of people and go and collect their trash on a trash day and take samples from that sort of thing, as they do in the U.S., and I believe it has been done in Canada. The police have to go and physically interview people and say, “We are investigating this; your name has come to our attention. Please can we have a sample to eliminate you.” Then it is taken from there.
In this case, they went to investigate Mr. Kappen Sr., because it was a child-father link. Mr. Kappen had died in 1990. Because of the seriousness of the offence, they got an order to exhume the body and then did the match from that.
More recently, and I put this in the report as well, two young women, two sisters, during COVID lockdown met with friends in a local park to celebrate a birthday. The friends left at the end of the party, and the two sisters were in the park, and somebody stabbed them both to death.
The family found their bodies in the park the following morning. The police investigated. A third DNA profile was found at the scene, and a third DNA profile was found on the knife. That profile matched no one in the National DNA Database. However, the police determined they would do a familial search. Normally, it is done for cold cases, but in this case it was done in a live case.
Within four weeks, the police had a link to another man, an older man, who had been arrested for a minor offence. He had provided his sample. It was sitting in the database, and they then started looking at his son. The father told the police he was worried about his son and that his son had been attacked and hurt himself, had his hand cut in the park on the same night the two women were murdered. The young man was arrested and provided a sample. Of course, it matched the blood at the scene of that crime, and he had cut himself whilst he was stabbing those two women.
What came out of this in the investigation was this young man, whether he is mentally disturbed or what — I don’t know — but he apparently had a pact with Satan that he would continue to kill women, and he would kill at least six women in six months, so he could win the lottery. Absolutely manic.
But anyway, the use of this technique solved the murder of two young women and potentially stopped the further assault or murder of at least four more in the next couple of months.
[Translation]
Senator Dupuis: I have a question for Mr. Bird and Mr. Yost. When I look at clause 3 of Bill S-231, it says that the court must make an order in respect of a person, including a young person, who is found guilty, discharged or found to be not criminally responsible on account of mental disorder. So we’re dealing with three different categories, and I’m wondering what your analysis is of the importance of including these three situations. In the case of a verdict of not criminally responsible, we’re talking about someone who is not convicted. In your opinion, does this categorization make sense, and on what do you base your reasoning?
Mr. Yost: First of all, when we have a declaration of non-criminal responsibility on account of mental disorder, we have to establish, beyond any reasonable doubt, that the person committed this offence, that they committed a murder. We’d like to know if they committed any other murders. The fact that they weren’t found responsible and weren’t sentenced to prison doesn’t change the fact that they committed the crime. That’s the legislation that has prevailed for 15 years. That’s what we have here.
Also, there are all kinds of programs where the person accepts responsibility. If they’ve accepted responsibility, they say, “Yes, I did it; I can do something else, community service or some other service.” The person has committed a crime. Again, their DNA could help us solve a much more serious crime.
In my opinion, if a person has committed a crime, but hasn’t been convicted, if we know they did commit it, DNA should be taken. That’s my opinion, but it may not be the opinion of the Department of Justice, which, for some reason that escapes me, was not involved in drafting the bill.
[English]
Mr. Bird: There are many occasions where Youth Criminal Justice Act convictions are discharged or diverted, and part of this original discussion is, yes, make the DNA order; they go into the data bank; it’s anonymous. Whatever happens to the record doesn’t attach to their DNA. Their identity might still be there in a secured system, but it also acts as a deterrence to the young offender. If you put your DNA into a data bank and you continue to commit crimes, knowing it is there, it leads to recidivism, and this is a deterrence against that. This would help young offenders stay on the straight and narrow, as much as I could say. So there is a definite benefit to society and perhaps to the young offender to having their DNA in a data bank. It also eliminates them as a suspect in any further investigation where there is DNA because they don’t match.
[Translation]
Senator Dupuis: You’re saying that we’re protecting a teenager from himself by saying, “We’re providing you with a narrow corridor; you better know we can find you anytime.” That’s what you’re telling us.
Mr. Maguire’s suggestion is that these samples should be taken at the time of arrest. In the bill, once the person is convicted, or for the three categories we just saw, what do you think about this idea of taking DNA at the time of arrest, rather than after conviction?
Mr. Yost: I must confess that I started my career in Ottawa. I’m from Manitoba and I worked in Preston Manning’s office. The first bill I analyzed for the Reform Party was the bill establishing the National DNA Data Bank. At the time, the Reform Party was of the opinion that DNA should be taken at the time of arrest, as in the United Kingdom. I’m convinced that this is the best way to protect Canadians. We must have as many files and profiles as possible in the National DNA Data Bank.
The other thing is that it’s not like fingerprints, which are taken every time a person is arrested and transferred here and there. You take the DNA once, but you don’t have to do it again in the future because the DNA doesn’t change.
[English]
Senator Clement: Thank you to the witnesses for your work and your careers. I would dare say most people in this space and beyond are against mass murderers, and we are all interested in making sure there are processes to investigate properly and to convict people who have committed these crimes.
My first question is for Professor Maguire. We know that science and technology seem to be free from bias, because it’s science, right? But we now know that it isn’t free from bias, that the bias exists and that reliance on science and technology can lead to unintended consequences to have people caught up in that.
You spoke about your system having regulation, working with ethics. Have you studied the unintended consequences, the potential overrepresentation of people who are caught in cycles and who are now in this system?
Mr. Maguire: Yes. I’m constantly challenged by students at the moment about the potential overrepresentation of ethnic minorities in our national DNA data bank, and I have to say it could be argued that certainly ethnic Black or Afro-Caribbean people in the U.K. are probably overrepresented in our national DNA data bank compared with the population. Within the data bank, we have something like 8% of the data bank samples taken from people who have been marked as Black or Afro-Caribbean. In fact, in the population it’s about 5%.
So it could be argued that there is an overrepresentation of Black people in the data bank, and, yes, that’s the case. But if you look at the U.S., there is a significant overrepresentation of ethnic minorities in the U.S. prison population. Yes, there is a possibility that’s the case.
My argument with my students is that if you look at the national data for population that is done by census every 10 years, the person sending in the form has to say they’re Black, Asian, Chinese, White or whatever, but the designation of your ethnicity when you have a sample taken at the police station is from the officer recording the sample. There are two different sets of data. It’s slightly different.
But I have to say there is probably an overrepresentation of some ethnicities in the data bank.
Senator Clement: Thank you, professor. It’s always good to be challenged by your students.
Mr. Maguire: Oh, isn’t it?
Senator Clement: It is.
[Translation]
My question is for Mr. Yost and Mr. Bird and relates specifically to Indigenous women. If the data collection process has led to the resolution of many cases, do we have these figures? Do we keep that kind of data?
Mr. Yost: I’m not sure. I think the Royal Canadian Mounted Police have gone to great lengths to find out what happened in their jurisdictions — in the eight provinces and territories where there are no provincial police. I don’t know what’s going on in Quebec and Ontario to follow up, but there’s been a lot of emphasis on that.
As Mr. Maguire said, there is most likely an overrepresentation of Indigenous people in the DNA databases, because there is an overrepresentation of these people in our prisons and they have been convicted. There will always be, I suppose, about twenty ethnicities, with some above average and some below average. In Canada, it’s Blacks and Indigenous people.
In my opinion, we’re approaching this the wrong way if we decide not to put people in the National DNA Data Bank or not to follow the possible clues obtained through kinship links because we’re afraid of finding more Indigenous persons. I don’t know how to deal with that — you have to get to the root causes of crime in certain parts of our population. However, if a person has committed a crime and a judge has proven it beyond a reasonable doubt, even considering the Gladue factors, that person should be in the databank.
[English]
Mr. Bird: I’d just simply add that the DNA data bank, as far as I understand it and when it was first set up, only uses anonymous DNA profiles that are highly variable. It does not identify physical or racial characteristics. It’s simply an anonymous number of numbers that meet a certain genetic part of the DNA code, but it doesn’t code for any particular known aspect. Once you are in the data bank, your race is anonymous, from that point of view. There is a question of what race is, but that’s something else.
Mr. Maguire: I can confirm that.
The Chair: Mr. Maguire, I hate to interrupt, but I will go to another senator. We are running short on time. I have two more senators on the list. There will not be a second round.
Senator Batters: Thanks to all of you for being here.
When I heard some of the earlier questioning, the thing that immediately came to my mind was the possibility of being able to rule people out based on DNA, which, of course, the chair mentioned in his speech that he gave about this bill last year. He mentioned the Saskatchewan case of David Milgaard, who was wrongfully convicted and spent so many years in prison. It could have been avoided had DNA been available at the time, and DNA was later used for his exoneration. As well, the tragic cases of missing and murdered Indigenous women — perhaps there could be some assistance with that with familial searching, et cetera.
One question I wanted to ask, first of all, is about the Supreme Court of Canada case that you, Mr. Yost, were referring to a bit earlier. In their R v. Rodgers decision, the court stated:
It is beyond dispute that DNA sampling is a far more powerful identification tool than fingerprinting. Therein lies the heightened societal interest in adding this modern technology to the arsenal of identification tools.
Also in that decision, the Supreme Court of Canada stated that the loss of privacy for the person who must provide a DNA sample in the National DNA Data Bank is minimal since it is comparable to fingerprinting. Do you agree with that, and does Bill S-231 change that?
Mr. Yost: That’s my all-time favourite Supreme Court of Canada judgment, senator.
Frankly, I thought that was going to prompt the government to move toward a fingerprint model. It didn’t. That’s all I can say on that topic. I am 100% in agreement with that, and the Supreme Court of Canada, as I said earlier, was in that same judgment very laudatory of the way the National DNA Data Bank is run to protect people’s privacy.
Senator Batters: Mr. Yost, I will go back to you on this one. Having served on the advisory committee of the National DNA Data Bank, you were aware of the unnecessary administrative burdens faced by police and bank officials. Could you explain how the bill will help streamline their work while maintaining privacy protections within that database? Do those burdens significantly impede their work? And could you please provide a couple of examples?
Mr. Yost: Well, first, the bill will eliminate the endorsement process. The original legislation provided that if a person was acquitted of the offence, you took it out. Fair enough, except we had situations in which people were acquitted of this offence and, in between that time, they had been convicted of another offence. No DNA order was made because they were already in. This was to resolve that problem, again, in our most complicated way, but I’ll let that one ride. The police, instead of taking a sample, send in a form to the National DNA Data Bank saying, “We didn’t execute this order because, according to CPIC, he is already in the DNA data bank.” There is a flag.
At this moment, about half of the things coming into the National DNA Data Bank are endorsements. That would be eliminated by this process. The police would not have to do that. If there is a flag in CPIC, that is, the Canadian Police Information Centre, no need to do it. We are supposed to send reports into the court that they executed the order. I’m not sure they’re still doing it, because what is the point of that order? The judge isn’t going to check CPIC to see if my order was carried out. Those burdens are being eliminated.
Because there are only about 19,000 samples coming into the DNA data bank today that need analysis in a year, and they’re going to get at least, well, I believe three or four people are devoted entirely to the endorsement process, I suspect they will not need to hire a single extra person to do this. They certainly have the equipment to do far more analyses than 20,000 a year. I don’t see it will be a major burden to the National DNA Data Bank at all.
Senator Batters: I wish we had more time because I would like to ask about familial searches. I think the public would be surprised to hear that in Canada they are not currently allowed, because certainly on U.S. criminal law TV shows, this is a common tool of investigation that’s used.
Thank you.
[Translation]
Senator Dagenais: I have a short question for Mr. Bird.
Mr. Bird, in countries where police officers can search by genetic cross-referencing, is there any case law for challenges by lawyers and defendants? In other words, should we be prepared for a new type of judicial debate, at least during the first few years of the law’s implementation?
[English]
Mr. Bird: Senator, this has been challenged in the British High Court in terms of arrest and DNA use; I think it was the Marper decision, which went to the European Court of Human Rights. The U.S. Supreme Court has ruled on it as well.
Yes, we would expect that there will be challenges, and they should be made — that’s what a defence lawyer’s job is — and we will get domestic jurisprudence. But if it follows the international acceptance of familial searching and time of arrest — if we get there — I expect that they will accept, as they said in Rodgers, that this is a legitimate tool.
Mr. Yost: May I add to that? It’s just that there won’t be many of these cases. This is such an intensive thing for the police to do, and there are only so many cold cases where it’s worth going to the effort where they have the DNA.
I’d be surprised if we had five crimes solved in the first year that this came through. Five cases where they might challenge it is not going to overburden the courts. It’s not like it’s going to be challenged in the overwhelming majority of cases where there’s a clean DNA match.
The Chair: Thank you both. At this point we’ve run a bit beyond our normal time, so I’m going to invite us to bring this component of our discussion to a close by thanking Mr. Yost, Mr. Bird and Professor Maguire for an engaging and frank set of responses to senators’ questions. I thank all senators for your engagements.
For our second panel today, we welcome, from the Criminal Lawyers’ Association, Stephanie DiGiuseppe, Director, who is joining us by video conference; and, as individuals, Dr. Michael Crawford, Professor in the Department of Biomedical Sciences at the University of Windsor; and Dr. Katharina Clausius, Associate Professor in the Department of Literatures and Languages of the World, Université de Montréal.
I’d like to welcome you and thank you for joining us. We’re going to begin by hearing remarks by Dr. Crawford and Dr. Clausius, a five-minute presentation.
Katharina Clausius, Associate Professor, Department of Literatures and Languages of the World, Université de Montréal, as an individual: Thank you. Our interest in Bill S-231 arises from the Tri-Council-funded research into the history and impact of the Canadian Genetic Non-Discrimination Act. We would like to acknowledge the contribution of our collaborator, Erin Kenny.
In our comments today, we aim to provide some key contextual facts concerning the bill’s provision to allow familial searching. This provision is one that all the submitted briefs have identified as controversial and that many have recommended for study before implementation.
Familial searching in the context of criminal investigations is widely acknowledged to pose significant risks in terms of consent, privacy and efficacy. Because of this, in a 2010 report, this committee emphasized that familial searching was “one of the most controversial subjects.” It further recommended that “. . . before kinship analysis or familial searching be permitted, the Department of Justice further study the matter . . .” and that “. . . a series of restrictions on the ability to conduct such a search are put into place.”
To our knowledge, this study has not been conducted, and no such restrictions are in place.
The specific risks associated with familial searching have been described at length, including in this committee’s 2010 Statutory Review of the DNA Identification Act and also in the recent brief submitted to this committee by Dr. Maguire. The risks include stigmatization of families as genetically criminal; the violation of the expectation of presumed innocence; exposure of innocent family members to unreasonable search and to genetic discrimination; and accidental revelation of confidential information to extended relations, including instances of false paternity or adoption.
Legal scholar Amy Conroy has shown, furthermore, that familial searching of the NDDB would perpetuate racial stereotyping and systemic bias of Indigenous communities, who are disproportionately represented in the criminal justice system. Finally, volunteer donors will be even less likely to come forward, given the risks to themselves and family. In our view, the risks of familial searching are not justified also because the technology used to conduct these searches has limited efficacy.
My colleague will elaborate on this point.
Michael Crawford, Professor, Department on Biomedical Sciences, University of Windsor, as an individual: Thank you. The technology used by the NDDB is known as CODIS. It’s used by the RCMP, the EU, as well as the FBI. CODIS identifies individual DNA samples, but it keeps biometric information obscured. There is no evidence conveyed of race, traits and health predispositions. It’s private. CODIS marks only 13 to 20 data points.
This privacy is a key reason CODIS was adopted in the first place. CODIS can be used to make side-by-side comparisons of immediate family, but it is also known to have very poor efficiency in searching data banks for relatives, and it cannot identify distant relatives. For these reasons, the FBI in 2022 prohibited the use of CODIS in familial searches.
There are more advanced technologies offering higher search reliability by marking some 680,000 data points or by sequencing whole genomes. The Association of Chiefs of Police has testified that Canadian investigators are already operating outside of the NDDB to make use of this technology in collaboration with commercial services and consumer data banks. Canadian legislation does not currently prohibit such searches. In our view, permitting familial searching of the NDDB is like opening the paddock door after the horse has bolted, and the horse should not have left in the first place.
The consumer data banks contain extremely detailed DNA profiles revealing intimate biometric information related to health, race and traits, and they expose very distant relatives. One infamous case revealed a link between two individuals with a common ancestor born in 1741. Individuals donating samples to these databases often have not consented to this use of their DNA, nor have their genetic relatives past, present and future. Commercial services are unregulated in terms of chain of custody, are vulnerable to tampering and error and operate across international jurisdictions. The newest technology reveals epigenetic details of an individual’s health, habits and life experience. In short, the risks of DNA analysis grow more acute, and the technology already outstrips legislation.
We recommend that the committee remove the bill’s provision to allow familial searching of the NDDB on the grounds that the risks involved are significant, understudied and need to be mitigated by restrictions. We also strongly urge legislators to protect Canadians’ genetic privacy and Charter rights and freedoms by prohibiting the use of commercial and open-source genetic data banks and genetic genealogy investigations by law enforcement until a legislative framework is in place.
Thank you very much.
The Chair: Thank you both. Ms. DiGiuseppe, I will invite you to make your presentation.
Stephanie DiGiuseppe, Director, Criminal Lawyers’ Association: Good afternoon. I will begin today with some general comments and then move to four specific areas of concern.
The Criminal Lawyers’ Association, or CLA, in its role as advocates for the constitutional protections of all Canadians is concerned by the significant expansion in the collection and cataloguing of the DNA of Canadian citizens.
The argument for collection which we heard presented today is self-evidently and explicitly premised on two primary assumptions. The first is that the Canadian government can protect the genetic privacy of Canadians. The second is that the Canadian government will never misuse the information in the data bank. When we think about the second assumption, we have to be extremely forward-thinking. Some of the young people captured by this bill will be alive in 70, 80 or even 90 years. We must acknowledge the capacity of every nation for change — even drastic change — in governance and policy.
Factors such as rapid technological expansion, the recent leap in the capacity of artificial intelligence and manifest geopolitical uncertainty should be at the forefront of the Senate’s mind when considering expansion at this time.
The CLA is concerned, for example, by the recent privacy breach at 23andMe where hackers targeted individuals of Chinese origin and Ashkenazi Jewish origin. I don’t mean to suggest the privacy methods are even close to the same between the Canadian government and a private company like 23andMe. I acknowledge Canadian protections are considered world-class; nonetheless, the recent racially motivated attack on the genetic material of two identifiable groups causes concern to the CLA regarding expansion of collection.
DNA sequencing technology is relatively new, and scientific understanding of the information stored in non-coding DNA has increased significantly in the year since the data bank was created.
In 2001, in a case called R. v. P.R.F., the Ontario Court of Appeal noted that despite the DNA data bank’s non-coding DNA collection policy, the risk that personal information about medical, physical or mental characteristics may be obtained from the data stored and used for purposes other than forensic comparison cannot be entirely discounted. In 2020, a study by Wyner, Barash and McNevin called “Forensic Autosomal Short Tandem Repeats and Their Potential Association with Phenotype” — I will send it to the committee after my remarks — found that a large number of phenotypic traits are associated with a type of non-coding DNA stored in our national data bank.
With that general framework in mind, I want to turn to four specific concerns that the CLA has.
First, the CLA is generally concerned that systemic overrepresentation of certain racial groups in the Canadian criminal justice system, particularly Indigenous and Black Canadians, will mean those groups will experience a more significant volume of incursions into their privacy rights over their genetic material.
Second, the proposed sentence-based method of distinguishing primary and secondary offences means that a large number of offences that have no rational connection to methods of investigation that use DNA will nonetheless trigger collection. I am speaking here of offences as clearly unamenable to DNA investigation as fraud, tax fraud, breach of trust and similar offences, and that lack of rational connection raises constitutional issues with this legislation. I should note there would be a large expansion in secondary designated offences, which would burden a drastically overburdened court system.
The third aspect is that the proposed amendments which would eliminate the distinction between individuals convicted of a criminal offence and individuals found not criminally responsible are concerning. The jurisprudence in this area, for example the Ontario Court of Appeal’s decision in Briggs, has justified taking people’s DNA on the trigger of criminal conviction on the basis that an offender, through their choice to commit a criminal act, forfeits their right to privacy in their DNA.
But an individual who is found not criminally responsible does not make a morally voluntary choice to commit a criminal act. They cannot be said to forfeit their privacy rights in the same way. Just this year, in a case called Roche, the Ontario Court of Appeal said of the current rules that “the unique status of an NCR offender is reflected in the discretionary nature of the statutory provision.”
People living in our society with mental illness are a protected group under the Charter, and they may have legitimate concerns —beyond schizophrenic delusions — as a historically targeted group, unfairly institutionally treated, about their privacy rights and their genetic material.
Finally, the expansion to young offenders is troubling. This is a group of individuals who are protected at law with enhanced privacy protection. The intrusion into the informational privacy of these individuals would be for an extended period of time — 70, 80 or 90 years. We cannot think we will know what the world will look like then. These individuals have a higher degree of expectation in the privacy of their genetic material that must be considered by this committee.
Thank you.
The Chair: Thank you both for your presentations. We will move to questions from senators, and we will limit our questions to four minutes in this round if we can.
[Translation]
Senator Boisvenu: Do you have an inventory of cases where information from the current bank — the federal bank — has been used fraudulently or not in compliance with the Privacy Act? Do you have any data since 2012?
[English]
Mr. Crawford: In the NDDB, no.
[Translation]
Senator Boisvenu: When you say there are risks of misleading or fraudulent use, you have no data to back up your claim?
[English]
Mr. Crawford: Fraudulent or misuse potential referred explicitly to the use of investigative genetic genealogy, which are the commercial and consumer databases but not the NDDB.
[Translation]
Senator Boisvenu: I see. My other question is on a topic we discussed earlier with previous witnesses: the crime resolution rate in Canada, particularly for serious crimes like rape and murder, is about 20%. Compared with the United States, where it’s around 60%, or New Zealand, where it’s around 70%, according to what we learned this morning... Do you agree that we have two choices? Either we automatically register the maximum number of people who have committed crimes, such as rape, in this database, and ensure that these people, if they regain their freedom, will not victimize others; or we don’t modify the current law or the current registry and we still have a 20% crime resolution rate, which means that rapists will continue to victimize others. Are these the two choices we currently have?
[English]
Mr. Crawford: I’m not advocating that the legislation not change. All I’m asking is that it be done in a careful and considered manner that has input from Justice and that considers, especially, the privacy of the individuals and their extended genetic relatives.
Ms. Clausius: I’d like to emphasize that we’re trying to make a distinction between the provisions in the law to expand the NDDB by including greater collection of samples and the provision for familial searching. It’s our opinion that the balance of risks and advantages changes significantly in the context of familial searching.
[Translation]
Senator Boisvenu: Do you have data on countries like England and New Zealand, which automatically register all people who are charged or convicted? Do you have data on the fraudulent use of state-managed data?
[English]
Ms. Clausius: Again, I think there has been a misunderstanding. We’re not claiming in any way that there has been fraudulent use or searching of the NDDB, but rather that there is this provision in the current law to allow familial searching for the first time, which we find problematic because of the risks associated. Aside from that, there is currently no legislation in Canada to prevent law enforcement from working outside the purview of the NDDB. To allow familial searching — even with restrictions — in the context of the NDDB does not take into account the current practice, which is actually to conduct searches, including searches of commercial data banks outside of the NDDB.
[Translation]
Senator Boisvenu: This bill does not change the Privacy Act, which remains as restrictive?
[English]
Ms. Clausius: But by allowing familial searching, you are definitionally changing the privacy of —
[Translation]
Senator Boisvenu: Don’t you have data on countries that do this, to determine if there has been a transgression of their privacy legislation?
[English]
Ms. Clausius: I don’t know how you would even quantify the transgression on the privacy of an individual, let alone the privacy of their genetic relatives, in this context.
[Translation]
Senator Dalphond: Welcome to our witnesses.
[English]
My first question — and maybe a short answer — to you and to the Criminal Lawyers’ Association. Do you have cases where the police use DNA information kept by private parties, those that offer to track your history back to the old days?
Mr. Crawford: Yes. The Canadian Association of Chiefs of Police has cited a couple of them, the Jessop case being one, and the recent solving of the Tice and Gilmour murders. There was one in the paper this morning, relating to a case that was 47 years old that had been solved using external commercial databases combined with consumer-oriented data banks.
Senator Dalphond: For the Criminal Lawyers’ Association, is that a problem, in the sense that we should have criminal infractions for private entities so they don’t share information without the consent of the client or the provider of the information? Because often it’s free.
Ms. DiGiuseppe: I can’t speak to the individual consent policies of all of these commercial services. I think I would agree; if you’re suggesting that that’s a significant privacy issue that should be protected by section 8 of the Charter where a person does not voluntarily consent to that kind of capture by law enforcement, that would be something that would trigger constitutional concerns — and has in other capacities where, in constitutional jurisprudence, we review those consents that individuals signed to see whether they have consented to provisions of law enforcement in order to determine whether the police can obtain that information. It’s also subject, of course, to whether the police do it through a warrant or through a request.
Senator Dalphond: To follow up on this line, in the cases you referred to, did the police seek and obtain judicial authorizations to ask the keeper of the information to provide it?
Mr. Crawford: A warrant? I’m not aware that they did, no. There is no requirement for a warrant.
Ms. Clausius: Another issue that has to be brought into the discussion around consent is the fact that these consumer data banks are full of profiles donated by people who are largely unaware of the fact that their DNA samples might be used in the context of criminal investigations and haven’t consented; furthermore, that their genetic relatives and offspring, some of whom are unborn, could not be seen to have consented either.
Senator Dalphond: Are you proposing that we add to this legislation a criminal infraction? Because we’re dealing here with a bill about the criminal law, and it’s about DNA in the criminal law system. Privacy issues are not what we have before us.
Mr. Crawford: You could prohibit police from using investigational genealogical analysis, just as you regulate how they use the NDDB.
Senator Dalphond: Thank you both.
Senator Prosper: Thank you, witnesses.
There was a term used that I’m looking to obtain a little more detail on. I think it was called “genetic discrimination.” I think, Mr. Crawford, you mentioned that term. There were also comments related to overrepresentation and intrusiveness, specifically along racial lines, and the data associated with DNA material, including medical, physical and mental data.
Could you provide more insight to help contextualize genetic discrimination?
Mr. Crawford: If the NDDB is open to familial searches, then you are definitionally using that whole population of profiles as a search query, and innocent people are going to be routinely interrogated as potential suspects. That’s a form of discrimination if 40% of the incarcerated population is Indigenous.
Senator Prosper: This question is further to what I mentioned earlier. In terms of the downside or ill effects of using — or potentially using — physical and mental data, are there any situations that you would suggest would be inappropriate in that regard as well?
Mr. Crawford: First, I have to state that I don’t think that the NDDB data can reveal those parameters, but the external sources can. There is really good evidence coming out of Stephen Scherer’s lab in Toronto that links specific arrays of genotypes with specific predispositions to any number of different mental illnesses. If you were to open genealogical analysis to beyond just identification and pedigrees to, you know, this person probably has a good chance of being schizophrenic, for example — and they are that close — then you are entering into the realm of not just a genotype but phenotype — physical and physiological attributes.
Senator Klyne: I have questions for both Dr. Crawford and Dr. Clausius. You mentioned in the report submitted to this committee that some provincial, state and local jurisdictions already use kinship and familial analysis by exploiting consumer-oriented genealogy DNA kits and websites. Can you comment further on whether this practice is widespread within Canada?
Mr. Crawford: This morning in the newspaper was a good example. The murder of Ms. Brazeau, which took place 47 years ago, was solved by sending DNA for analysis to a U.S. lab called Othram, which uses a combination of these high-density micro rays — these powerful genetic tools — to compare to genealogy submitted by hobbyists to identify the culprit. The Christine Jessop trial is another example. The Toronto Police Service solved the case of Tice and Gilmour last year, which is a case that took 23 years to be solved. So, yes, since the “Golden State Killer,” it is picking up momentum. More and more people are using it. It is still an expensive process, and the most complicated and problematic cases are the ones that are receiving obvious priority.
Senator Klyne: Given that direct-to-consumer companies using SNP technology are often regulated by American legislation, are you aware of any safeguards that regulate DNA profiles’ integrity and privacy, be they company safeguards or safeguards emanating from American legislation?
Mr. Crawford: No. As far as I’m aware — I may be wrong, and I stand to be corrected — the legislation in America pertains to the use of SNPs in predictive health advice that they offer. For example, 23andMe first sold itself not as an ancestry divining device but as a way to get an idea of whether you are predisposed to developing diabetes or Alzheimer’s. The evidence just wasn’t solid enough. They are regulated as a consequence of that.
Ms. Clausius: The jurisdictional issue is further complicated by the fact that even if a company is based in the United States, it doesn’t mean that the data bank is held in the States. It is often held in a third jurisdiction, a third party or third country.
Senator Simons: I have a quick question for Ms. DiGiuseppe. In a case where somebody has been found not criminally responsible by virtue of mental illness, do you see any potential issue in requiring somebody who may still not be able to give consent to give a genetic sample that will be held in perpetuity? I realize that sometimes someone commits a violent action when they are floridly psychotic, and when they are back on their medication, they are fine by the time the case goes to trial, but in some cases, people are still incapable of giving consent.
Ms. DiGiuseppe: I agree that the potential for this method to be experienced as state violence by the person who is undergoing collection is high, particularly when dealing with a population that, beyond suffering from issues such as paranoia, will also have a particular attitude toward forced treatment. They may have had forced treatment levied against them in other capacities, they may have lost the right to make their own medical decisions, and now the state is making them have a blood sample taken. Yes, I think that could be a very traumatic experience for an individual who doesn’t understand what is happening.
When we force a historically discriminated population that is sensitive to the idea of state-instituted forced treatment to do something like this, we have to treat that experience differently to how we might treat the experience of someone who understands the process. Thank you for that question.
Senator Simons: I have a question for Dr. Clausius. Something you said struck me philosophically. Years ago, when I was working as a journalist, I covered the case of an Indigenous young offender who was receiving sentencing as an adult, in part because of an analysis done by a psychiatrist who had examined him in hospital and said he was genetically predisposed to crime and pointed to a whole familial history. At the time, I wrote an outraged column about how terrible this was.
As I am listening to you, I am looking ahead to a world in which people will start to see crime as a genetic predisposition. There will be families who are perceived as clusters of crime. I am wondering if you can speak philosophically about what you think the dangers are of our culture adopting a mindset that some families are marked or are blackened from the outset. “Profiled” isn’t even the word for it.
Ms. Clausius: I think that speaks to Senator Prosper’s concern around genetic discrimination. That’s the definition of genetic discrimination. What is particularly urgent about the notion of familial searching and this idea of identifying families and, by extension, larger communities, extended families and communities as more likely to have criminal tendencies than others is that it goes against the spirit and probably also the actual legislation of the Canadian Genetic Non-Discrimination Act.
One advantage of acknowledging that certain types of criminal behaviour maybe do have some kind of root in genes and in epigenetic profiles is that it can offer a more humane or humanitarian approach to the prosecution of crimes, for instance, in the case of people suffering from illness.
Our main concern is that the premise of familial searching is that people who belong to criminal families are more likely themselves to commit crimes, and that their children, grandchildren and great-grandchildren, by extension, are more likely to find themselves —
Senator Simons: It’s like a curse, instead of saying, “Perhaps you come from a group that has historically been economically and socially disadvantaged, and perhaps that is why you have a history of criminal behaviour.”
Senator Batters: I think those families would probably already be covered by a fingerprint database.
My first question is for Dr. Crawford. The use by police of DNA outside the National DNA Data Bank is not the subject of Bill S-231, which we’re studying. This bill does not modify the privacy protections with the National DNA Data Bank. In your opening comments, you were saying that you want changes to be made in a careful and considered manner, but this bill is not talking about genealogical data banks like 23andMe. This bill only provides for the use of the National DNA Data Bank with all of the significant protections that are included with that. Wouldn’t you agree that’s a significant departure?
Mr. Crawford: No. What’s the point of legislating familial use of the NDDB and not the obvious and more powerful alternative at the same time? You could argue that by opening the NDDB to familial searching you might reduce, in some small measure, the use that investigators are making of these consumer and other groups. But they still represent in both cases, in our view, a fundamental invasion of privacy of genetic relatives.
Senator Batters: But most of the concerns that you’re mentioning are dealing with things like these genealogical-type databases that do not have the types of protections of privacy and the things that the government-controlled National DNA Data Bank has. You don’t see that as a significant difference?
Mr. Crawford: I would argue that in opening the NDDB to familial searches, you will be specifically interrogating, in a biased way, specific subpopulations of the Canadian population.
Senator Batters: Also on familial searches, this bill limits it to cases where the DNA would have been required to be provided to the National DNA Data Bank due to a conviction, not the earlier stage provision. Again, on that, do you think that’s more protection? You would have to agree that is more protection on that particular issue.
Mr. Crawford: I would be horrified if it were upon entering the police system rather than upon conviction. I know that in the early experience of the U.K. data bank — I was at a conference 20 years ago when it was expanding willy-nilly — there was an astonishing number of misidentified and duplicate entries into the system to the extent that people were worried about the integrity of the data bank. It has since been rectified.
Senator Batters: To the Criminal Lawyers’ Association, Ms. DiGiuseppe, I would like your comments on what I was discussing with some earlier witnesses about the types of cases where having this type of DNA data bank provision, with proper protections, can actually help in cases of wrongful convictions — to ensure that we don’t have wrongful convictions or, where there are, they are hopefully rectified, as in the case of David Milgaard.
Ms. DiGiuseppe: I want to be clear that I do think that is a benefit of the DNA data bank — excluding innocent people — but we have to be careful not to overstate it. The DNA data bank can also include innocent people whose DNA happens to be at the scene of a crime they did not commit. Someone who has a sexual encounter with a victim prior to a murder, in some of the more horrendous cases, for example, or someone who happened to have a nosebleed in a location where the crime occurred a few hours before the crime occurred. There is a potential for exclusion but also a potential for inclusion of innocent people as we open up the data bank to more and more samples; we need to be aware of that. It’s not a panacea. It’s not a simplistic solution.
Senator Batters: That could lead, potentially, to additional evidence being generated and those types of innocent explanations being provided by these people. If it was a case that they were with the person but that was earlier, then maybe that provides additional information to help solve substantial crimes.
Ms. DiGiuseppe: I think that disregards the often overpowering nature of DNA evidence in the court system versus a person’s exculpatory information, which may be seen as self-serving by police or juries or judges.
I would note that overrepresentation of certain people can lead to that. More innocent people of certain ethnic groups can end up included through crime-scene investigation. That is something we need to be aware of as well.
[Translation]
Senator Dupuis: Welcome to our three witnesses. My question is for all three of you, but I’d like to start with Ms. DiGiuseppe.
Have you had a chance to look at the issues covered by Bill S-231? First, there is an interaction between the inclusion of teenagers in Bill S-231 and the Canadian Human Rights Act, which prohibits discrimination on the basis of age.
Secondly, the bill includes people who would have received a verdict of not criminally responsible on account of mental disorder; so there’s an interaction with section 3 of the Human Rights Act, which talks about disability. Does the bill include grounds of discrimination as defined in the Charter of Human Rights and Freedoms?
If we refer to what witnesses Crawford and Clausius said, it is possible to use banks that allow intervention on genetic characteristics, which also represents a prohibited ground of discrimination. Section 3(3) of the Human Rights Act states:
Where the ground of discrimination is refusal to undergo a genetic test, the discrimination shall be deemed to be on the ground [...]
My question is for the three witnesses. Thank you.
[English]
Ms. DiGiuseppe: Thank you, senator, for that question.
At first blush, you might think there is no human rights issue here for young people or people with mental disorders because we’re treating them the same as other people. That would ignore the reality that sometimes discrimination can come from treating people the same when their interest and the effect on them are different, the adverse-effect discrimination. I think that is what your question is driving at, and that is one of the significant problems here — when we’re not really treating young people the same, because their reasonable expectation of privacy in their genetic material is much higher simply by virtue of their lifespan, but also by the virtue of the fact that they have not, in the same way, forfeited their privacy rights and their genetic material by engaging in criminality. We acknowledge in our Youth Criminal Justice Act explicitly, in our jurisprudence, that young people don’t have the same capacity for morally voluntary choice as adults due to their developmental age and cognitive abilities.
I do believe there is a discrimination and a human rights issue vis-à-vis young people and individuals with disabilities as well. I spoke in an earlier question about how the experience of DNA collection can be very different, and I think that goes beyond just the physical act of collection for an individual with a mental disorder. This can contribute to something the Supreme Court of Canada has acknowledged — the specific pain that individuals with disabilities have faced through institutionalized or systemic medical interventions into their lives and over data collection into their lives.
Thank you very much for that question as well.
Mr. Crawford: To amplify a point made by Ms. DiGiuseppe, one of the problems, and it’s a big problem, is the lifespan of young offenders. There is nothing in the legislation anywhere that I’m aware of that requires the specific technology be used by the NDDB. The NDDB is regulated by an advisory group, but they are explicit in their annual reports, for example, on being open to introducing new technologies. Who is to say what that technology will be? At this point I would hazard a guess, it is as cheap to do a whole genome sequencing as it is to do the CODIS, maybe $100. It will get cheaper, so maybe it will be financially expeditious to just do a whole genome sequencing, and that encompasses a whole bunch of information. I don’t care how carefully protected privacy is; as soon as you get into familial searches, you open a huge can of worms. “Technocreep” is a concern.
The Chair: Thank you very much.
Senator Clement: Thanks to all three of you for your testimony, your work and research.
I want to continue along the line of questioning started by Senator Prosper around the issue of overrepresentation of Black and Indigenous people, which is a problem that we all acknowledge but can’t seem to come up with any kind of coherent, consistent or powerful plan to actually deal with its many layers.
Doctors, you co-authored an Impact Ethics blog post in 2022 where you say the expansion of DNA databases risks legalizing discriminatory practices. The Canadian National DNA Data Bank is already disproportionately populated by vulnerable groups more likely to be incarcerated. You said the same thing today. I am interested in understanding whether the Genetic Non-Discrimination Act, the way it is now, will actually protect people. If we change this, if this law passes, do we then have to change the Genetic Non-Discrimination Act? How can we increase protections if we pass something like this?
If you can also speak to the fact that this has a record retention aspect that then makes it difficult for people to reintegrate, which is also of concern. If you could address those things, please.
Ms. Clausius: I will just say very simply that the Genetic Non-Discrimination Act was not conceived with the criminal justice system in mind but rather to protect Canadians, specifically in employment, insurance and health contexts. I’m not aware that there is specific provision in that act that would apply to this particular case.
Do you want to speak to records retention, Michael?
Mr. Crawford: I think the idea of having a time limit on retention is excellent and fair because society compositions change with time; people’s behaviours change with time.
I think that if these changes were to be made, you would find yourself at the Supreme Court eventually being challenged with the Genetic Non-Discrimination Act and probably also section 8 of the Charter, because, at least in the case of familial searching, if you were to admit familial searching, you could, arguably, be violating the right to freedom from arbitrary search.
Senator Clement: You talked about the risks having been understudied here. What are you suggesting in terms of study, and what risks are we talking about? What needs to be done?
Ms. Clausius: We can speak to the specific risks in a moment, but I think the crucial point is that the technology is advancing so rapidly, and our knowledge of the types of information that genetic and epigenetic information stores and makes accessible lags behind our practical use of DNA profiles. So it is actually not even possible to know all the risks, let alone to start studying them. And those risks are only going to become more acute and more serious as the technology advances.
Mr. Crawford: This committee itself asked for the Department of Justice to conduct a study in 2010, and that has not been forthcoming.
Among the people whom we have interviewed — and we have had a lot of suggestions — Clayton Ruby, shortly before he died, suggested that something like familial searching should come only with the approval of a superior court justice, which removes it from the discretion of the overseers of the NDDB and ensures that a really strict rigour is going to be observed.
I’m not at all impugning the integrity of how they propose to operate now or have in the past, but governments change, attitudes change, and I think that it would be prudent to put in place protections.
Ms. Clausius: Very briefly, I think the focus of risk analysis, as far as I know, has largely focused on individual risk and individual privacy concerns. A crucial point is that once you move into the area of familial searching and, in the commercial sector, genealogical studies, one important area to scrutinize is the extent to which individual protections and privacy actually make any sense in those contexts.
Mr. Crawford: Collective.
The Chair: We’re nearly at 1:45 p.m., which is our hard-stop time. With your indulgence and agreement, colleagues, I will bring the session to a close.
I want to thank Dr. Crawford, Dr. Clausius and Ms. DiGiuseppe for joining us and providing a very lively and engaging conversation with our Senate colleagues.
We will be continuing the study of this bill on Thursday after the break. We have that one day of work with respect to the statutes repeal legislation, which we will do on Wednesday after the break, and then we will return to this.
You may recall that Senator Carignan will be with us and he will be our first witness that day for the continuation of the study of the bill.
Thank you, colleagues, for your lively engagement with our witnesses as well.
(The committee adjourned.)