THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 3, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:30 a.m. to study matters pertaining to delays in Canada’s criminal justice system.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning. Welcome colleagues, invited guests and members of the general public.
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-ninth meeting on the study.
We are pleased to have with us again the Honourable Neil Wittmann, Chief Justice, Court of Queen's Bench of Alberta, joining us via video conference from Calgary.
The Chief Justice appeared before the committee earlier this fall when we were visiting Calgary, and at the end of that hour I put to him five topics that we did not address because we ran out of time. I invited him to return to explore those and other topics with the committee.
Just to refresh members' memories, the topics raised were the implications for scheduling from the use of supernumerary judges; whether or not preliminary inquiries are still useful in the wake of Stinchcombe; whether the increase in charge numbers is influenced by overcharging and if this is contributing to delays; what impact, if any, pre-trial credits have on delays in the criminal justice system.
Finally, I wanted to explore an issue raised by our other witness that day, and unfortunately he cannot join us again, Chief Judge Matchett of the Alberta Provincial Court. While he was the chief judge, he was not boss of judges in Alberta. They were his colleagues. I wanted to explore that a little more. I wanted to ask the Chief Justice what challenges that perspective posed for him as he tried to deal with the issues of delays in his court.
So Chief Justice Neil Wittmann, you can respond to any or all of those. I know you have a few brief comments before we get to questions and answers. I know the situation in Alberta has changed in terms of vacancies. Welcome and we're very honoured to have you join us today. The floor is yours, sir.
The Honourable Neil Wittmann, Chief Justice, Court of Queen's Bench of Alberta, as an individual: Thank you, Mr. Chair.
I will make a few brief remarks pertaining to my written submission last time and the events that have occurred since.
As those members that were in Calgary are aware, and anyone that has read the transcript, one of my main concerns with respect to availability of court time, as it affected the ability to process criminal cases in a timely manner, was the lack of judicial resources and other resources.
I'm pleased to report that since that time we received some appointments to our court. All of the vacancies were not filled on October 19. The announcement by the Government of Canada that they made seven appointments in Alberta was true, but what wasn't announced — and you have to drill down and look at it — is that although seven appointments were made, two of those appointments were to our Court of Appeal, and those appointments, those people were taken from our court. So we netted three judges.
We have three vacancies now. By January 3, we will have another four vacancies. My submission about filling vacancies on a timely basis remains.
Also, during that week, the Province of Alberta announced that they were going to expand our court by nine positions.
The difficulty is that the Government of Canada has never recognized the four positions in total that were authorized by the Government of Alberta, passed in the legislation in January 2013. They only recognized two of those positions, one of which has never been filled.
Also, what is particularly concerning to me is my understanding of the appointments process in Canada to Superior Courts and the news releases that were made known again, October 19 or 20, to this effect. There are some changes to the judicial advisory appointments committees across the country, which seemed to be largely lauded as improvements. However, what is very concerning is the issue that all of the committees were disbanded and anybody that was previously approved by a committee is no longer approved. So today, no one in this country, according to the protocol, is eligible for appointment to a superior court. Those committees will have to be reconstituted. That will take some time, and the time it takes will mean that vacancies will not get filled while that process is ongoing. I know that some effort is being made to do that quickly, but then they have to meet, review candidates and get the names in. That's concerning to me.
That's what I wanted to update the committee on in terms of the appointments process. We need more judges to properly serve the criminal justice system and, for that matter, all of our court business — family law, civil law — in a timely manner.
That's what I have to say about the previous testimony. In terms of the five areas, I can take questions on those or I can comment on each, as is your wish, Mr. Chair.
The Chair: Your Honour, why don't you give us a brief comment on each of them, if you are in a position to do so. That may generate additional questions from members as we go forward.
Mr. Wittmann: Sure. The first item was how supernumerary status affects scheduling. In our court, I would suggest it doesn't affect scheduling at all in terms of any difficulty. I think I said before the expectation is that supernumeraries work 50 per cent of a full-time judge's schedule.
We know who is supernumerary. We know when they're going supernumerary. Usually if they are going to achieve that status during a term, they finish out their term. For example, we have three judges attaining that status from this month and next month, but they will sit until December 31 and finish out their term as if they were a full-time judge. But we have done our schedule from January 1 to June 30 next year, and those people are scheduled to sit 50 per cent of the time.
So it's not a scheduling difficulty to schedule those judges to sit 50 per cent of the time. We know when they're going to go supernumerary. They give us plenty of
notice — more notice than is actually formally given to the Minister of Justice for Alberta and the Minister of Justice for Canada.
On the issue of the usefulness of preliminary inquiries, I would caution most people who are considering this issue to listen to the defence bar and the prosecution service more than the judiciary. I know the judiciary will have opinions on this. I've heard them from various people. Usually those opinions stem from the background of a judge when they were either a defence counsel, a prosecutor, or in some other area.
I think the tension there is two or threefold. First, the preliminary inquiry for certain kinds of cases is very useful for the Crown and the defence when the credibility of a witness — say a complainant witness — is in issue. Is it useful in all cases? Perhaps not. Do defence lawyers sometimes want a preliminary inquiry for reasons other than to ascertain the case they have to meet? I don't know; you would have to ask them. But I think that information is their friend. That's the way they see the world, and I don't know how they can be faulted for that. How useful that information is in some kinds of cases, with the current disclosure regime, is arguable. Does it contribute to a delay? Yes, it does.
Also, the alternative is problematic to some extent, and we see it when they prefer direct indictments in this court. As you know, when they prefer direct indictment, there is no preliminary hearing. That has caused us to do more pretrial conferences when there's a direct indictment because neither the Crown nor the defence seem to know their case as well as they do had there been a preliminary.
Our judges try to drill down into the merits of the case for the Crown or the defence and ask a lot of questions. We are getting more and more aggressive in that area because we find that if we're more aggressive — and I think aggressive in an appropriate way; we don't try to coerce anybody. However, we want to know things like, for example, if we think some charges have little chance of success, we're candid about it in a pretrial conference. The pretrial conference judge in our jurisdiction is never the trial judge, disqualified for that reason. So you can be candid with the lawyers, or if there is a self-represented person you can be candid with them at that stage.
In terms of the usefulness of preliminaries — to end where I began — talk to the Crown and to the defence. I think you will probably get a better, more valuable perspective from them.
In terms of charging or overcharging, again, we notice that when we do pretrial conferences, sometimes there are many counts in an indictment that the Crown is probably either not going to pursue or decides not to pursue at a pretrial conference. I was struck by an article in one of the national newspapers of the regime differences between Ontario, Quebec and British Columbia, where the conviction rate seems to be much higher in those jurisdictions where the Crown vets the charges before they are laid, rather than the police laying the charges and then the Crown having to deal with them. I think that's a matter of public knowledge. Most statistics from Ontario, Quebec and British Columbia — and I assume they're available in Alberta — would perhaps be useful in looking at the issue of overcharging, as would the idea of having the Crown vet the charges.
With regard to the issue of pretrial credits, again, I think a candid discussion with defence lawyers and the prosecution, perhaps even some corrections people, might be useful in that sense. I think that various perceptions of that may be inaccurate. The idea that someone wants to stay in remand under some conditions which are far harsher than in a federal penitentiary or a provincial jail so as to obtain 1.5:1 credit — or, as it used to be, 2:1 credit — I know that sentiment is prominent in some cases, but how realistic it is, I don't know. I think, again, the candid perspective of a defence counsel is probably the best source of that. I find it hard to believe that that instruction would be given to a defence counsel as some sort of an incentive to delay the case.
The last topic, Mr. Chair, you referred to was Chief Judge Matchett's comment that he's not the boss of the judges in the provincial court. I would echo that comment. I'm not the boss of the judges in our court. They are my colleagues. It's often said that a chief judge or a Chief Justice's only power is to make the assignments. That may be formally so. Practically, though, a Chief Justice has to, I think, not govern but run the court operationally in terms of the assignments, with the ability to generate common goals and enthusiasm not only for what we do, but also for how we do it.
In Alberta, at least, we have generated and created not only a strategic plan but a so-called governance structure where we have an executive board with four elected judges, and then myself and an Associate Chief Justice. We would rarely ever countermand a decision by the executive board. We operate by consensus, but that is the way, I think, to exert influence on your colleagues, and I think they have to be colleagues, only because, as you know, judges are independent and a lot of the personalities accentuate that aspect.
The Chair: When you talk about an executive board, is that sort of mechanism commonplace across the country?
Mr. Wittmann: I don't know the answer to that. I haven't heard of it. At our Canadian Judicial Council meetings, we developed that because when I became Chief Justice in 2009 I felt there was a need for strategic planning and a different structure. We had a lot of committees, but the committees were not functioning. They weren't, dare I say, delivering, so to change that, we got a little bit of money and got a person from the Haskayne School of Business at the University of Calgary to come in. They talked to us for a couple of sessions to tell us what strategic planning is, how to do it and make recommendations for a governance structure, realizing that it wasn't like conventional business organizations, where there was some ability to use remuneration or benefits as an incentive for people. I think that the court, generally, is better off for it, but that's not say that other courts don't have other mechanisms. I don't know that.
The Chair: Can you give us an example? If you have a court that's not performing as efficiently as you feel it should, how would this executive group approach that concern?
Mr. Wittmann: We have a number of initiatives in terms of how we deal with various aspects of our processes. For example, briefly, through the executive board and our practice groups, the governance structure consists of practice groups, and we have criminal, civil and family law steering committees that make recommendations to the executive board for implementation.
Four or five years ago they made some recommendations in the criminal practice area, for example, that we have a criminal duty week, where we put all our criminal processes into one week. This is just in Calgary and Edmonton, where the majority of our judges reside. That court does summary conviction appeals, bail, all the pre-trial conferences scheduled for that week and it does some sentencings if there are guilty pleas available during that week. It's a concentrated criminal duty week and we find that has advanced things.
How do we deal with that? We have people who want to do that activity. We've concentrated it in about six judges per city, through a rotation and on a term because we find that the criminal bar and the prosecution service like judges that are familiar with their area. This touches on the issue of specialization, which is quite controversial in a lot of superior courts in this country, where there is no family division or unified family court because, I think, the bar wants specialization. A lot of judges resist that. They say, "We didn't sign up for that; we're a generalist court."
My own personal view is it's very difficult to keep up with developments on every aspect of every area of the law when you — by which I mean a court — are supposed to be handling every area of the law as a superior court.
The Chair: Thank you, Your Honour. We'll move to questions by committee members.
Senator Baker: Thank you very much, Mr. Chair, and thank you, judge, for your presentation here today.
I suppose we'd like to thank all the judges. We have met dozens of judges during this inquiry who have testified before this committee. We want to thank you for doing that, because we can interview all the Crown prosecutors, defence counsel and victims groups we want, but until we hear the opinion of the judges on certain matters we can't really have a complete report.
I have one general question, because there are a lot of questioners here. You mentioned the schedule and you said that you set down matters from January until June 30. I presume that June 30 deadline is for the summer recess. Could you verify that for me?
The thing I think I'm struggling with as far as our recommendations are concerned is the fact that we have, as you referenced, Stinchcombe, and now we've got further disclosure requirements of every police officer who is involved in an investigation, and the disciplinary records are now required because of a decision of the Supreme Court of Canada.
You mentioned the preliminary inquiry. The rules of court, as we have looked at them across Canada, have, for matters of management of trials, set down a period of time prior to trial in which defence counsel has to have all of its pretrial arguments in, including its Charter arguments. In other words, there is a deadline set prior to trial for the hearing of those arguments. The preliminary inquiry would, I imagine, provide a good opportunity for defence counsel to examine any pre-trial arguments that defence counsel wishes to pursue, including Charter arguments.
Because we have discussed it a lot, we're considering whether or not it should be required of the Crown — meaning the prosecutorial service and the police — to introduce all disclosure of all evidence to be used at trial, prior to trial. In other words, set down a distinct period of time and then any additional disclosure during trial would have to pass a test similar to the test used if you were appealing something to an appellate court. If you wanted to bring in new evidence then you would have to prove you used due diligence and that wasn't available at the time of trial. If you wanted to reopen a voir dire with new evidence, you would have to pass that test.
I'm wondering if you have any comments on any of what I have just said.
The Chair: We'll suspend for a couple of minutes to address some technical issues.
(The committee suspended.)
(The committee resumed.)
The Chair: Thank you. I'll call us to order again. I don't know if you heard Senator Baker's question earlier. I'm hoping you did.
Mr. Wittmann: I don't think he finished. My short-term memory is still pretty good.
The Chair: Do you want to wrap up, then, Senator Baker?
Senator Baker: I'll try to wrap up. I don't know how far you were able to hear me. My first question related to why —
Mr. Wittmann: About disclosure, and the deadlines for Charter applications, that sort of thing.
Senator Baker: Yes. So we're looking at the preliminary inquiry as an opportunity for defence counsel to explore these pretrial applications, Charter applications and so on. We're considering putting in a suggestion regarding disclosure that there be a timeline prior to trial and that any new disclosure during trial would have go through the process that normally applies if you wish to introduce new disclosure and to reopen a voir dire, or if you were appealing a case and you wanted to enter new evidence, you would have to go through those hoops.
My first question was that you set January to June as being your schedule time. Why is it June 30? And when does the new schedule begin for the fall? And then if you had any comment on anything that I mentioned. You got the part where I thanked you profusely for appearing before the committee, and all of the other dozens of judges who have appeared. You set a good example, and thank you.
Mr. Wittmann: Dealing first with the way we do our scheduling in Alberta, I've suggested, last year or so, that we don't — in August, and then we have a fall schedule, which is September 1 to December 31. We are a year-round court, but we schedule by segments. I know some other courts — I got here, which is about 11 years ago, we did no trials in the summer, as scheduled. Since the last five years or so, we've implemented summer trial schedules. The difficulty there is that the bar has not — early report suggested and indeed they suggested in the Jordan case that we need a cultural shift. We can do a year-round schedule quite nicely. There are a lot of judges in our court that have grown-up families that rather than —
The Chair: We are missing that. He's essentially recommending a year-round court. We are not getting the details, though, because of our technical difficulties. We'll suspend again.
(The committee suspended.)
(The committee resumed.)
The Chair: Our second witness today — and hopefully we won't have any technical problems — is Anthony Tessarolo, Director, Centre of Forensic Sciences with the Ontario Ministry of Community Safety and Correctional Services.
Welcome, sir, we appreciate you being here. I believe you have an opening statement, so please proceed.
Anthony Tessarolo, Director, Centre of Forensic Sciences, Ministry of Community Safety and Correctional Services: Good morning Mr. Chair, and honourable senators. My name is Anthony Tessarolo, and I am the Director of the Centre of Forensic Sciences, or CFS, which is an Ontario government laboratory operated under the Ministry of Community Safety and Correctional Services.
Thank you for the opportunity today to speak to the Standing Committee on Legal and Constitutional Affairs on the provision of DNA testing in support of criminal investigations.
In Ontario, the CFS provides services to law enforcement, Crown attorneys, coroners, pathologists and other official investigative agencies in the province. We accept cases from defence counsel in some circumstances and are one of only a few government labs in North America to do so.
I understand this committee is very concerned about the delays that exist in criminal proceedings and the contribution of forensic science, and specifically of DNA testing, to that issue. I share the same concern.
The success of forensic DNA testing and the Centre of Forensic Sciences is predicated on anticipating the needs of our clients and using innovation to ensure we provide them with timely, high-quality analyses. In fact, that is our mission and vision.
In the next few minutes I would like to share with you a bit of information about the CFS, our current performance, the issues and challenges that we are focused on and our plans for the future.
The CFS was established in 1951, initially as the Attorney General's laboratory of Ontario, with a mandate to assist in the just and effective enforcement of the law through the provision of scientific testing in a legally admissible form.
Today, the CFS has 240 staff and two laboratory locations in Toronto and Sault Ste. Marie, Ontario. We are accredited to international standards and conduct testing in over 4,000 cases annually for our clients. Of those 240 staff, 85 are in the biology, or DNA, section.
In 2015-16, our average turnaround time for DNA testing in routine cases was 33 days. In cases where there is an urgent need for rapid testing, the CFS consults with its clients to determine what the appropriate turnaround time should be, and then tracks its performance against those urgent commitments. Over that same period, CFS met its urgent turnaround time commitment for DNA testing 100 per cent of the time, with an average of 14 days.
Where there is a public safety issue, such as a serial predator on the loose, the CFS routinely provides DNA testing results to police in 24 to 48 hours. Again, of critical importance is the open communication between the client and the laboratory.
This level of performance has been achieved through three critical strategies: Well-trained, high-performing staff; efficient and reliable procedures; and sophisticated technology that enables high-throughput testing. And our clients are largely very satisfied with our work. The 2015 edition of the CFA annual client survey, which was distributed to over 2,500 of our clients, yielded a satisfaction rate of 91 per cent.
CFS has worked hard over the last 10 years to improve its performance while dealing with an increased demand for its services. In fact, over the 10-year period from 2006 to 2015, CFS managed a 48 per cent improvement in turnaround time, with a 27 per cent increase in demand and a 5.5 per cent reduction in staff.
Since its inception in 2000, the CFS has contributed over 44,000 DNA profiles to the crime scene index of the National DNA Data Bank, or NDDB, which comprises 36 per cent of the total profiles in that index. These contributions have led to the linkage and resolution of many unsolved cases. I'd like to share with you just one example of such a case, one of the first cases that illustrated the value of DNA testing and the National DNA Data Bank.
On August 27, 1991, in the middle of the night, a stranger broke into 63-year-old Muriel Holland's apartment in Mississauga, Ontario. The perpetrator gained access to the residence by cutting the screen of her ground-floor window. He found Ms. Holland sleeping on a pullout coach in the living-room. She had given up her bed to her 93-year-old father, who was in the next room. The perpetrator struck her over the head and knocked her unconscious before sexually assaulting her and strangling her to death. Evidence was collected and a DNA profile from semen was identified by the CFS.
The case went unsolved for 10 years but in 2001, following the launch of the new NDDB, a DNA profile from the perpetrator was uploaded to the Convicted Offenders Index, because he was subject to the retroactive provisions under the legislation. The profile matched the DNA profile from the semen and soon after, Richard Eastman was arrested and charged. He was subsequently convicted of first degree murder.
Obviously, there have been many more DNA linkages made and many more investigations advanced since then by the work conducted at CFS and the National DNA Data Bank, but the Muriel Holland case, which was the first homicide solved by the data bank, illustrates the tremendous value of DNA testing.
But it's not all good news. Over the last 12 to 24 months, a concerning trend has been established. The demand for forensic testing and, in DNA testing in particular, has significantly increased. We have experienced a 25 per cent increase in demand for DNA testing from 2013-14 to 2015-16, and that significant upward trend is continuing over the first half of this current fiscal year.
That concerns me, because the improvements we've managed to achieve over the last 10 years are not sustainable in the face of increased demand without increased support.
The CFS budget is $27.3 million annually. For a number of years, the federal government, through Public Safety Canada, has provided Ontario and Quebec with $3.45 million annually through the Biology Casework Analysis Contribution Program to enhance the testing of biology evidence and to increase the contribution of DNA profiles to the National DNA Data Bank. And although a commitment was made by Public Safety Canada to renew that funding when the previous agreement expired in March 2015, Ontario has yet to see any of those funds.
Funding will continue to be an important issue in the future. As you know, federal legislation that establishes a DNA-based missing persons index received Royal Assent in 2015. Once fully implemented, DNA profiles from unidentified human remains and missing persons and their families will be databased nationally, but the resources required to conduct this DNA testing at CFS will have to come from the existing budget as we have been advised that no new funding will be provided by Canada for this new work.
Our continued and future success in delivering on our commitments will be dependent on a different way of thinking and, perhaps, a different way of delivering forensic DNA testing.
At CFS, we are introducing a new approach to setting turnaround time targets. Our clients told us that cases in the active investigative phase — that is to say, those cases where the police are actively pursuing the perpetrator but have not yet made an arrest or laid charges — are a much higher priority in terms of need for forensic testing.
Our clients have also told us that once arrest has been made and the case enters what we have termed the "litigation phase," the time pressures are eased somewhat as this stage of the case is more deliberate and measured. Based on feedback that we received from our clients, we will be introducing different turnaround time targets based on the two phases.
And when these cases come to trial, we will continue to promote the use of video testimony for the delivery of viva voce evidence by our experts. In as many as 40 per cent of our cases, our scientists are summoned to courtrooms across the province only to be advised that their attendance is not required. The impact on travel costs, travel time and loss of laboratory time is significant in these cases.
I should add, as well, that within Ontario, there is a Justice Video Network, so we don't typically see the kinds of technological challenges that we just experienced when we're connected to courtrooms across the province.
Finally, I'd like to leave you with a future vision for timely and efficient forensic DNA testing. In the near future, portable, rapid-DNA instruments will be available for testing at the crime scene, or at the point of collection in the case of suspects, where preliminary testing can be conducted in an hour or two to screen out possible suspects, identify possible perpetrators and narrow down the selection of crucial probative evidence for more detailed testing in the laboratory.
CFS has already made significant strides toward this vision by purchasing equipment and initiating internal testing. But achieving the vision will only be possible by remaining committed to the three strategies that enabled us to get here: capable people, reliable procedures and sophisticated technology.
Thank you again for the opportunity to be here. I will be pleased to answer any questions you may have.
Senator Baker: Thank you, Mr. Tessarolo. First of all, let me publicly recognize the great contribution you have made in this area, and in the position that you hold.
It's somewhat distressing: we were examining DNA legislation yesterday in which we may suggest a change to the Criminal Code to remove a defence for someone who has committed a primary designated offence — a very serious offence — and who doesn't want their DNA taken.
We were talking about that yesterday, but we heard you say that your funding is being challenged here, and you have a 25 per cent increase in the number of requests. I imagine you are the largest DNA testing facility in Canada. Are you?
Mr. Tessarolo: The RCMP lab services, in combination, amongst three labs in total, would have a larger complement of staff than we would.
Senator Baker: Your results make up 36 per cent, I think you said, of the total amount in the National DNA Data Bank.
Could you repeat what you said about the federal contribution that you were expecting but that ceased in 2015 and has not come forward? Could you explain what has happened here? You have not seen that increase that was supposed to come from the federal government, and I suppose you're not being compensated for that supposed decrease in federal funding by the provincial treasury, so you are left with a shortfall. Have I heard you correctly?
Mr. Tessarolo: Not exactly. It is the Ontario government that would be owed that funding. Fortunately, that additional allocation has been forwarded to us by the Ontario government. It's Ontario that is awaiting the $3.45 million from the agreement that expired on March 31, 2015. We have had a number of negotiations with Public Safety Canada and we have received a verbal commitment to continue that funding for another five years, but we seem to be mired, at this point, in some clerical issues that are preventing that funding from moving forward.
I'm confident that we'll get to that point, but it's disappointing in terms of amount of time that has passed without Ontario seeing those committed funds.
Senator Baker: You make a great contribution to crime prevention.
Regarding court delays, you suggested video conferencing, rather than having your experts appear in person, is that because of repeated delays in the court system? Am I hearing you correctly there?
Mr. Tessarolo: Yes. They are not appearing in court for a number of reasons. Sometimes they appear at the courthouse only to find that the accused has pleaded guilty. Sometimes, because of the caseload that the prosecuting attorneys must deal with, the opportunity for the Crown attorney to engage with the accused about the case doesn't happen until the morning of court, and sometimes a resolution to the case occurs outside of the courtroom on the same day that the witness appears.
With the use of video testimony, those inefficiencies are not as great a concern because a staff member just walks down to the second floor of our building and awaits to be called to the stand, if you will. If there is a plea or a resolution outside of the courtroom, they simply walk back to the lab and get back to work. It's very efficient for us.
Senator White: Thank you very much for being here.
We heard from some witnesses who talked about the collection of DNA and where Canada is compared to other countries. In fact, one witness yesterday specifically made a comparison between DNA collection and fingerprint collection. We collect latent fingerprints from every crime scene in Canada and I think in our data bank right now we have about 35 million crime scene prints, give or take. About 3.5 million of those are prints from known criminals and we compare those continuously, but we don't do that with DNA.
In fact, the number of crimes in which we can collect DNA from individuals is very limited. If we were more like the U.K., which collects DNA regularly from people on arrest, I think, and not even on charge, we would have a greater opportunity to stop future crimes from occurring. And because we're talking about court delays, we would have a greater success rate in courts.
DNA evidence is the gold standard of evidence. That used to be fingerprint evidence, but I think DNA has become that gold standard. When funding was provided, would you support us moving there, and do you see the same type of success in the picture painted for us yesterday by our witness, Mr. Bird?
Mr. Tessarolo: That's a very good question, senator. It's clear that as you increase the number of profiles in the data bank, you increase the number of linkages or hits that you experience. If you increase the number of hits, you increase the number of investigations that are aided. There are two indices in the data bank: there is the Crime Scene Index which is, as you noted, an index of DNA profiles from evidence collected at the crime scene; and the Convicted Offender Index, which consists of profiles from convicted offenders.
It's important that, in order for us to increase the overall effectiveness of the data bank, we increase the number of profiles in both of those indices. To increase one at the exclusion of the other would not improve the overall effectiveness of the data bank. You can increase the number of samples in the Convicted Offender Index by ensuring that those individuals convicted of designated offences actually have their profiles entered in the data bank. You can increase that by expanding or changing the legislation, as you noted, in the U.K. and in over half of the States in the U.S., where there is arrestee legislation. DNA profiles from arrestees are immediately captured in many states and entered into the database.
You can also increase the number of samples in the Crime Scene Index by expanding the number of eligible offences and thereby any profile generated in any offence could be uploaded nationally. I think it's a combination of things, increase the samples in the Crime Scene Index and in the Convicted Offender Index.
Senator White: My second question, and if you aren't connected to this area, I accept that, is around information collected in relation to firearms, whether it's brass, spent brass, test firing of weapons that are seized. I think New Jersey has legislation that obligates police services who seize information to enter it into IBIS, which is the Integrated Ballistics Identification System. We have CIBIN, which is the Canadian system. We do not have a requirement for police agencies, and out of 198 police agencies, the vast majority do not regularly enter that information. And I am sure you would say we do not have the resources anyways, and I understand that. But if there was legislation and resources that came with that, do you also see how that would make that third connection — fingerprints, DNA and now ballistic information — that would allow us to solve crimes more quickly — and serious crimes; we're talking about firearms offences — and more importantly, most likely get convictions more easily?
Mr. Tessarolo: We are familiar with CIBIN, and we do provide firearms testing services at the CFS.
There is an important difference between the National DNA Data Bank and CIBIN and the information that's collected within CIBIN, and that's about the specificity or the strength of association that comes from those two databases. No two individuals have the same DNA profiles, and when we have a DNA profile that is similar to or the same as the DNA profile in the Convicted Offender Index, we can say with a strong degree of certainty that they are from the same person.
When we deal with firearms in CIBIN, what happens there is that the correlation results that are returned when we compare a firearm that we’ve collected to the database is not as specific. There is a lot of evaluating that has to happen. It's somewhat similar to fingerprinting in that manner, but the key to the effectiveness of CIBIN is to ensure that only crime guns end up in that database. So provided that there is some sort of screening or evaluation of those firearms to ensure that only crime guns are getting into the CIBIN, then I think you do increase the effectiveness of the database.
However, if you are simply entering every firearm available, every firearm that comes into the possession of the police, then in fact you're diluting the effectiveness of CIBIN, not strengthening it.
Senator White: That's an important difference. A .410 shotgun that was found in a field is not going to be entered. It is not helpful.
However, when a police service has a turn-your-guns-in amnesty, and as a result you get a camera for it — I think they're called guns for pixels; I did it once, so I know — the reality is some police services don't even test fire those .357s that show up. They're not a crime gun, but they certainly have the ability to be a crime gun — right, a 9 millimetre — and were not registered in the previous national databank or any databank today in relation to prohibited weapons.
I don't disagree that we have to be clear because we do that with fingerprints. All of the federal employees, government employees who have had fingerprints taken aren't run against crime scene latents; we know that. But it is important that we do something, because right now if a police service has resources and the RCMP have the capability or you have the capability, then we upload them, and if not, we don't. That's what's happening today.
Mr. Tessarolo: I think you made an important point about triaging. There has to be some sort of preliminary assessment about the likelihood of that firearm being involved in criminal activity. If that's done first, I think there is the potential to increase the effectiveness of CIBIN.
Senator Jaffer: Thank you for the work that you do and also for your presentation today. I have some preliminary questions.
You have an easy relationship working with the National DNA Data Bank. Can you tell us how you share information, or do you both have the same information?
Mr. Tessarolo: Well, we certainly have a very positive relationship, a very collaborative and professional relationship with the National DNA Data Bank. The staff members in both facilities know each other and work together very closely.
In terms of the sharing of information, there are some very specific restrictions under the DNA Identification Act in how information is shared, but suffice to say that the most important information that is shared between the two agencies is the upload of DNA profiles to the databank and then the sharing back of any associated linkages that arise from the search of that database, and that happens through a very routine and effective mechanism.
Senator Jaffer: How do you share information across the country?
Mr. Tessarolo: The information of the DNA databank is shared through a secured connection between the RCMP and the provincial forensic laboratory, so the RCMP would connect to our lab in the same way that they would connect to the Laboratoire de sciences judiciaires et de médecine légale in Quebec.
Senator Jaffer: I was very intrigued by what you were saying, that if it was serious or urgent enough, for example, a serial killer, that you could process something in 24 hours. For a layperson, can you explain what information would you have to have to be able to do that? Can you explain the mechanics of how you do this?
Mr. Tessarolo: How this would start is that the police would contact the Centre of Forensic Sciences, and we have a dedicated number as well as a dedicated scientific adviser email address for which that initial reach out would happen. Once that happens, a manager within the biology section would have a one-on-one conversation with the investigator in charge of the case, and listen to what the specific needs are in that case. Do we have a serial predator? Is there a public safety issue at hand? How would the testing in a rapid way advance their investigation? What investment are the police making in terms of monitoring a potential predator? Do they have a surveillance team on the individual 24/7? Because that is a very expensive endeavour, so if we are able to conduct a DNA test in 24 to 48 hours, that whole team of investigators and police dedicated to that case can potentially go back to their other work, so there are some huge cost savings.
But that's the kind of discussion we would have with the investigator, and then we would make a determination in concert. Is this a 24- to 48-hour, a three-day, five-day or a seven-day turnaround? And once we came to an agreement on that, then we would ask for that evidence to be submitted, and in the case of a 24- to 48-hour turnaround time, we would have a team in place, essentially at the lab door, waiting for the receipt of the evidence and to start the processing right away so we could get results back as quickly as possible.
Senator Jaffer: What kind of evidence would you need from the crime scene, and then you would have the databank? What kind of evidence?
Mr. Tessarolo: That's a good question, because evidence could be anything. Evidence could be a swab of blood from the crime scene or it could be a bus. It really depends on the case.
Often, in these sorts of cases, we might have had a DNA profile already generated, perhaps from semen from a complainant in a sexual assault case, and that profile would be waiting for something to be compared to. If the police have a particular person of interest in mind, they might collect a discard sample from that individual — it might be a pop can or a cigarette butt — some sort of material that could then be submitted to the lab and a DNA profile generated from it and compared to the profile we already have from the crime scene evidence.
Senator Jaffer: Do you need a warrant to get the cigarette butt or some saliva from the accused person?
Mr. Tessarolo: Not in the case of a discarded sample; it's considered to be an abandoned sample.
Senator Jaffer: Not this kind, but the other, for example, the saliva.
Mr. Tessarolo: In terms of the comparison sample, it could be obtained in two ways. One is through voluntary means. Police can ask for it. Typically, if a person is a person of interest or a suspect in the case, they will simply obtain a warrant for that sample.
Senator McIntyre: Thank you, Mr. Tessarolo, for your presentation and all the good work that your centre is doing.
In your presentation, you pointed out that the success of your centre is largely due to three strategies, namely, capable people, reliable procedures and sophisticated technology. I think that is very important and the reason it's important is because the whole point of DNA testing in the law enforcement area is to have evidence that is admissible in a court of law.
I take it that the personnel employed in DNA labs receive some form of legal training and they know how to keep and document the chain of evidence. What is the relationship between law enforcement personnel and those who run DNA labs? Are you satisfied with that relationship or does it need to be improved?
Mr. Tessarolo: I'm very satisfied with it, particularly with respect to the Ontario model. That relationship between investigators and the forensic service providers is an important one. It's one that requires collaboration, and I just gave an example of the importance of that and the ability to work closely.
However, it also requires a level of separation to ensure that the examination, the conclusions that we derive, the reports that we provide, the testimony that we give is independent and free from bias. So there is this relationship that has to take advantage of or must be mindful of those two positions.
Within Ontario we are an Ontario government lab, part of the Ministry of Community Safety and Correctional Services. We're not directly part of any police service so we're able to maintain some of that independence and that allows us to drive our decisions based on the science rather than on the relationship we have with the police.
Senator McIntyre: As I understand, before a DNA profile is added to a database, there are certain legal and scientific requirements that need to be met and are you satisfied with those requirements or do you think the requirements are too lax or too strict?
Mr. Tessarolo: No, I think I'm satisfied with those current requirements. As you pointed out, they're basically twofold.
One is that the profile must be from a case that is a designated offence and that's something that we can determine, based on the information that the police provide us. And the DNA profile must meet certain scientific standards or technical requirements in order to be eligible for upload to the National DNA Data Bank. The current system works quite well and allows us to work effectively.
Senator White: For people who are listening or watching, you briefly talked about the difference between DNA today and 10 years ago. If you watched TV it's a droplet of blood but today we can get enough out of a fingerprint, at the molecular level, to actually do an identifier. We have much greater opportunity as well, and not just challenges but also opportunity.
Mr. Tessarolo: That's true. It's a very sensitive technique and I'll give one example to try to illustrate the amount of DNA now required for a test.
Most people have had the occasion of eating a Smartie — Halloween just happened and I ate a lot of Smarties — and one single Smartie is about one gram in terms of its weight. If you were to divide that Smartie up into 1,000 pieces and take one of those 1,000 pieces and divide that into another equal 1,000 pieces and you were to take one of those, and you took one of those and divided that up into 1,000 pieces and took one of those you would have more than enough to do a DNA test with that amount. That amount would be one nano-gram or a billionth of a gram — a very small amount.
Senator Baker: Thank you very much for your evidence. It's fascinating and contributes to what we're studying.
In answer to a question from Senator Jaffer, you mentioned that a discarded matter that contains saliva, like a cigarette butt or somebody drinking from a cup, would not require judicial authorization. You would just pick it up because it's discarded; it's just like garbage. Did you say if the police wished to have a sample of somebody's saliva you believe they would require judicial authorization?
Mr. Tessarolo: For a known sample from an individual, it would be obtained by warrant or under consent.
The Chair: Mr. Tessarolo, thank you, on behalf of the committee. I had the opportunity of having an almost six years of up close and personal exposure to the good people and the outstanding and valuable work you do on behalf of not just Ontarians but right across this country. Please convey the thanks of the committee back to your colleagues and we very much appreciate your appearance here today.
Mr. Tessarolo: Thank you, senator. I'm sure they're watching.
The Chair: That concludes our business for the day.
(The committee adjourned.)