Public Safety Committee on Feb. 26th, 2009

[The Vice-Chair, NDP, Jack Harris]

I'd like to call the meeting to order.

This is the sixth meeting of the Standing Committee on Public Safety and National Security of the second session. Thank you for coming.

We have some special guests today. We are continuing our review of the DNA Identification Act, a statutory review in accordance with section 13 of that act.

We wish to welcome today our witnesses, and I will introduce them to you.

First, my name is Jack Harris. I'm the vice-chair sitting in for Gary Breitkreuz, who will appear at some point and take over his usual duties.

We have, on behalf of the Canadian Association of Chiefs of Police, Chief Constable Derek Egan. Thank you for coming, sir.

And we have Vincenzo Rondinelli, defence counsel with the Criminal Lawyers' Association. Thank you for coming, sir.

Also, from the Office of the Privacy Commissioner of Canada, we have Chantal Bernier, Assistant Privacy Commissioner; and Lisa Campbell, acting general counsel, legal services.

Thank you all for coming.

We have a normal procedure of offering witnesses ten minutes for their presentations. In your case today, we have three groups, and I'm assuming in this regard that the Office of the Privacy Commissioner will share their time. We're not overly rigid, but we don't like to get too far out of our bounds, so I hope you'll help us in that regard. We will then have questions from members of the committee.

Without further ado, we can start in the order of our agenda here, and ask Chief Constable Derek Egan of the Canadian Association of Chiefs of Police to begin his presentation.

Welcome, sir.

[Constable Derek Egan, Chief Constable, Canadian Association of Chiefs of Police]

Thank you.

Good morning, Mr. Chairman and committee members.

The Canadian Association of Chiefs of Police is very pleased to be invited to make submissions to this committee regarding the statutory review of the DNA Identification Act. DNA testing has become an indispensable tool in the fight against crime, and we are committed to participating in any process that can make it more effective.

It is an overarching proposition of the CACP that the effectiveness of this tool relies upon the size of the data bank and the timeliness of submission. The sooner and the greater the number of samples that go into the bank, the better the chances of finding a match, helping to solve and prevent crime and eliminate an innocent party. We strongly believe that legislation should, as much as possible, support this proposition with reasonable limits and safeguards that respect privacy.

We note that the DNA data bank holds approximately 153,000 DNA profiles on the convicted offender index, equivalent to less than 0.5% of the population of Canada, as opposed to the U.K. scheme, which has approximately 7%. The crime scene index is also underpopulated, with a current volume of approximately 47,000 profiles. This is largely attributable to the DNA analysis capacity, of which I will speak later.

The application of science to identification through DNA is undoubtedly the most significant aid to police investigation to date. It is the most positive identifier of victims and suspects alike, and provides courts with irrefutable proof of identity as an aid to the conviction of the guilty and the exoneration of the innocent.

The Canadian Association of Chiefs of Police was founded in 1905 and incorporated as a non-profit organization. The association is dedicated to the support and promotion of efficient law enforcement and to the security of the people of Canada. The CACP is national in character. Its interests and concerns have relevance to police at all levels, including municipal, regional, provincial, and federal. Our board of directors includes chiefs, commissioners, and directors of police services who are representative of the widespread regions of Canada and who are elected by the membership.

Our association has long been a proponent of the effective use of DNA as a means of identifying viable criminal suspects and eliminating innocent people. During the 1990s the association strongly advocated for and supported the government in the creation of a national DNA data bank. Since then, we have taken all opportunities to participate fully in any process that would improve the scheme and enhance public safety

In August 2000 the CACP adopted resolution 2000-04, which expressed concerns that if no peace officer were available to escort convicted persons, and those persons chose to leave, there would be no ability to compel them to re-appear to give a sample. The government recognized this omission, and corrected it under Bill C-13.

In October 2002, pursuant to the DNA data bank legislative paper 2002, we also took the opportunity to advocate for the list of designated offences in the Criminal Code to include those offences known to be precursors of more serious crimes. For example, serial murderers and serial sex offenders do not begin at that level, but start with offences such as trespassing at night and stalking. We were pleased to see this was acted upon in Bill C-13.

However, we believe that the government should also have given consideration to including other precursor offences, such as prowling or trespassing at night, and indeed offences related to the possession of prohibited and restricted weapons. Certainly the ability to obtain samples arising from the illegal possession of weapons would be of great assistance to us in British Columbia in the investigation of gang crime.

We also took the position that the DNA samples should be collected from individuals deemed not responsible at the time the offence was committed. Such a finding really means that they did commit the offence, but simply were unaware of the nature and circumstances of it. Clearly, the possibilities existed that they had previously committed offences, and if released in the future they could do so again. Again, we are pleased to see this was included in Bill C-13.

Finally, Bill C-13 also brought us to the point where all murders, including a single murder, would be included, as would be a single sexual assault, rather than the previous requirement of two or more. Again, that allows us to put into the data bank people who have shown a propensity to a crime and may have done others previously.

In sum, the CACP is grateful and honoured to be given the opportunity to provide a perspective and to work with the government to find ways to use DNA to enhance public safety.

With the committee's indulgence, I'd now like to comment on several issues connected with the act that concern the members of our association and police officers in general. My comments will be somewhat global in nature and will not deal with specific legislative amendments. I will leave that discussion to subject-matter experts and the legislative drafters.

In general, police view DNA quite literally as a biological fingerprint, and they naturally seek congruence with the Identification of Criminals Act. Amendments to the act over the years have led to significant progress in achieving this congruity, but gaps remain. The comments that I will make are within this context and build toward this congruity.

Section 4 of the DNA Identification Act declares as a first principle:

The protection of society and the administration of justice are well served by the early detection, arrest, and conviction of offenders, which can be facilitated by the use of DNA profiles.

It is the CACP position that earlier sampling and the greater the number of profiles in the data bank, the earlier and greater the likelihood of solving and preventing crime. Limitations on designated offences, on authorization processes, on the point at which a sample is taken, and on retention rules serve to frustrate this aim. We believe that an alignment of the DNA Identification Act with the Identification of Criminals Act would remedy these shortcomings and include the necessary safeguards.

We would contend that maintaining convicted-offender profiles and the acquisition of DNA by buccal sample is a little more invasive than fingerprints, and that the rules governing the taking and retention of fingerprints are easily transposed to the DNA samples. Indeed, as science and technology evolve, the practical securing of suitable DNA from a person fingerprinted without ink seems a very real possibility.

Congruency with the Identification of Criminals Act would extend the list of designated offences to include those that could be proceeded by way of indictment or summary conviction, and thus capture precursor offences, such as trespass by night, stalking, and other offences currently excluded where DNA would facilitate identification and prosecution, such as dangerous driving.

As important as the above is when the samples are taken, many jurisdictions, such as the U.S., U.K. and Australia, follow a model of on-arrest sampling. This, or at-charge sampling, significantly increases the volume and timeliness of profiles placed in the data bank, leading to greater detection and prevention of subsequent offences. The taking of at-charge samples is congruent with the Identification of Criminals Act.

Congruency with the Identification of Criminals Act would also permit the DNA sampling of deceased persons. This, again, would aid in the identification of missing persons, the solving of crime, and the bringing of closure to victims of crime.

[The Vice-Chair, NDP, Jack Harris]

You have about a minute and a half left in the official time here, so govern yourself accordingly.

[Constable Derek Egan]

Retention also plays a role in the data bank. Currently, access to the profile is disabled when a conviction is overturned on appeal. Congruency would allow these to be kept. The U.K. experience is that 15% of matches occur in this category.

Congruency with the identification act would also move the approval process from a court-ordered one to an administrative one, and by doing so improve submission rates, and indeed reduce error rates.

We also strongly advocate for additional indexes. We believe a human remains index would assist in identifying missing persons, a deceased offender index would assist in solving crime, and a voluntary live victims index could provide linkage to other victims, human remains, crimes, and offenders.

Though it's possibly not within the scope of this committee's review, some comment regarding capacity must be made, given our wish to see the data bank grow. It is our contention that while capacity and expansion are linked, they should be addressed separately. Capacity will continue to be an issue as the science evolves and the ability to detect and retrieve samples increases, regardless of an expansion of designated offences and retention rules.

In 2007 the CACP passed resolution 2703 calling on the federal government to fully fund DNA analysis to meet demand, and we continue to work towards this. We believe legislation should support capacity growth rather than restrict it.

I have two final points I would like to make. One is with respect to search limitations. Currently the legislation does not permit the searching of the bank with evidence of human remains that we believe to be a person convicted and on the index, so it's necessary to obtain a production order for this information. Nor does the bank permit a data bank search for familial matches where this would also aid the investigation focus and eliminate non-involved persons.

Finally, I'd like to talk about the administrative burden caused by the endorsement process for repeat offenders. Currently fingerprints must be taken each time a person on the index is arrested for a designated offence, causing a significant administrative burden in the case of prolific recidivist offenders. We would recommend that persons provide one full sample of one endorsement set of fingerprints only. This will remove this burden.

To conclude, the CACP has historically taken all opportunities to provide input into legislative reform, policy improvements, and innovative solutions, and in regard to the use of DNA as an aid for identifying criminals and exonerating the wrongfully convicted has strongly advocated and supported the government's proposal for the creation of a national data bank through the 1990s. We were consulted and we rendered opinions all through 2002 with respect to the legislation. In respect to Bill C-13, we suggested a number of amendments that were subsequently legislated.

We acknowledge and are very gratified by the level of responsiveness the government has shown. We continue to advocate for the expansion of DNA legislation with a view to making it consistent and parallel with the Identification of Criminals Act. We would ask the government to give consideration to the issues I've raised herein.

Thank you, Mr. Chairman.

[The Vice-Chair, NDP, Jack Harris]

Thank you, sir.

We'll move right along now to Mr. Rondinelli. Go ahead, sir.

[Vincenzo Rondinelli, Defence Lawyer, Criminal Lawyers Association]

Good morning.

I'm here this morning on behalf of the Criminal Lawyers Association. I'll give you a bit of a background. Our organization is comprised of about 1,000 defence lawyers across Canada. One of our mandates is to provide some missions to committees such as this, and also to sit in advisory capacities with the judiciary and crowns. As well, and like crown attorneys across this country, our members are really on the front line of the criminal justice system, and obviously legislation of this sort impacts our members quite drastically.

Before I begin my submissions, I just want to mention that due to short notice for me to attend today, it was a bit of a challenge to get written material in time to have it translated. I understand that the material I did provide is in the process of being translated, and you should be receiving it in the near future. In terms of my submissions, I'll keep them in a more brief compass for the purposes of the ten minutes I have this morning.

One of our main concerns, and it has been a concern since the inception of the data bank, is what we've called for a long time this concept of legislation creep. If we look at the history of DNA legislation in this country, we see that we have gone from a very restricted type of individual or offender whom we were looking at putting into the data bank to a much broader spectrum of offenders. In 1995, when the first piece of legislation that dealt with DNA warrants came out, it was really restricted to the most violent of offenders, and those of sexual offences.

Then, when we moved to the year 2000 and the data bank was created, the spectrum evolved again into a broader picture of offenders that not only included these primary and secondary designated offences, as they were categorized, but also included offences such as driving offences, where dangerous or impaired driving causing bodily harm made its way into the legislation.

Then we see a much broader sweep, in my submission, with the introduction of Bill C-13 last year. Not only were there a number of new offences listed but an even broader category of offences where if it's preceded by indictment then the punishment is at least five years were also able to be put into the data bank. We see that a different type of offender and those being found not criminally responsible due to mental disorder were also in the realm of being able to be put in the data bank.

Again, in our submission, you're seeing the trend where it really started off as a very limited scope. The balance we struck as society with the obvious privacy concerns and the civil liberty issues that were on the table from day one is that if we are going to take something that has been termed the blueprint of life, we're going to restrict it to those members of society who really have a lower expectation of privacy because of what they've done and what they're capable of doing in the future. The balance was struck that we're going to restrict it to the murderers and the sexual assault type of offenders, and then, as I mentioned, the pendulum seems to have swung to a much broader area.

Leaving aside the civil liberties scope or basic arguments that have been there since day one in terms of the privacy interests engaged in all of this and the information can be gleaned from a DNA sample and all that, I wanted to focus more on a practical aspect of what we're saying.

We're fortunate because the U.K. is well ahead in this area, as you've heard. Their data bank is close to five million now, and obviously a large percentage of their population is in there. The U.S. as well has a long experience with DNA data banks. We can learn things from their history in what has and has not been working.

One of the areas in our submission that should be paid close attention to is that the legislation creep isn't unique to this country. You've obviously seen in the U.S. and the U.K. in particular, they're getting DNA not only upon arrest but whenever an offence is recordable or arrestable and they're able to keep this in the DNA data bank, with some limitations.

If I have time, I'll get into the European Union decision that came out in December, which was quite a blow to the U.K. database as it is today.

What we see, at least in some of the empirical evidence that came out of there, and again in the two practical areas that I'd like to deal with briefly, is the following. Can we handle any expansion? When we're dealing with it, yes, it sounds great to include all these new offenders in the database, but on a practical, technical, and financial basis, can we handle the expansion? Secondly, is there really any value-added to expanding? Are there results being seen with a larger database?

Dealing with the first point, then, all of you may be aware of the 2007 Auditor General's report that found some issues dealing with backlog in our database. Samples not being processed in time created some backlogs.

Again, this is not unique to this country. The U.S. is plagued with database logjams, to the point that they have put federal legislation in place that is called the DNA Analysis Backlog Elimination Act. I can't remember the criteria off the top of my head, but states can apply for federal funding to help them deal with the backlog they've generated in their own states because of expanding a DNA data bank to include more types of offenders. Obviously that's going to create more work, more budget constraints, and everything else that goes into that type of decision.

The U.K. isn't without their issues of backlog either. While the U.K. is close to five million, the U.S. is probably closer to four million these days. As I understand it, our data bank is at about 155,000.

This leads me to the second point in terms of whether further expansion may actually yield results. Again, it's helpful to look at some of these studies coming out of the U.K. and the U.S. A lot of the stuff I mention is mentioned in my materials, so at some point you will be getting the references for where these studies can be found.

A recent study in the U.K. found that even though their database was expanding by about 650,000 profiles a year, they were getting crimes solved in only one in eight hundred cases. Basically, they're not really getting as much value-added from the database as they did at the beginning, when it was restricted to the most violent and sexual assault types of offenders.

In our submission, that should come as no surprise. When you look at the database and whether it's going to plateau at some point, where you're really not going to get much more bang for your buck in terms of solving crimes, you look at the types of offenders. Statistics in the past have always demonstrated that it is the most violent or the sexual offenders that are the highest recidivists, so having them already in the data bank....

A lot of good things have been done in terms of tweaking the data bank, even in a retroactive aspect, as we've heard already this morning. Before, they would have had to commit two or more murders, but now that has changed to one, and rightly so in terms of how the legislation was put in place. Anyone who commits murder should be in the data bank. That's obviously been justified on a charter basis. But when you start including all these other offenders and at the end of the day you're not getting results, it shouldn't be a surprise, because the recidivists, as I've said, have always fallen into the category of the most violent or sexual offenders.

One of the difficult things for us in Canada, I guess, when we look at the statistics, or at least at what is provided at this point, is to see what sort of value we're getting. All I can really go with is what's on the website of the national data bank, or, as they term it, the “National DNA Data Bank Investigations Assisted”. They have a total of 11,126 as of February 13, 2009. It's broken down into some of the offences where they say they have been assisted.

Now, the question we usually have is what does that really mean? There are no statistics that we've been able to find in terms of which ones actually lead to convictions. Of those statistics, if you try to break those down with any types of statistics, depending on how you use them, they mean different things to different people. Did any of those investigations result in guilty pleas? Did they even result in convictions? Was there any other evidence that was first used to then use DNA? It's those types of questions. Again, as the statistics stand there's nothing really there to demonstrate that there really is a value added to expanding it any further, a value added in the sense that when you're looking at what the data bank was meant to do, and that is detection of crime and solving crimes and so forth, I think there should be more research done on the actual statistics.

I see I am running out of time. I'll end. I have it more fulsomely in my written submission.

As it stands and what it was meant to do in detecting crime and solving cold cases from the past, one glaring thing with the data bank is that there really is no opportunity or provision for access for exoneration. On what can be done and what can't be done with the crime scene index and the convicted offender index, there's nothing legislated in there that allows access to, for example, an innocence project, where they have some sort of file where they would really get some use out of accessing the data bank to see if there's some sort of match in whatever capability they can make of it. This is unlike some states in the U.S. As mentioned in the paper, there is the New Jersey database. They do have specific mention and provision for an innocence project, to be able to access it. If we look at what we want from the DNA data bank--and solving crime is obviously in everyone's best interest--exonerating the wrongfully convicted should at least play a part as well. Thankfully we don't have the type of track record that the U.S. does, but that doesn't mean wrongful convictions don't happen in Canada. We unfortunately have seen that.

Even in speaking with Alan Young, who is the director of the innocence project at the Osgoode Hall Law School in Toronto, he mentioned that he does foresee a problem in the future. He has some files coming down the pipe where he thinks that he may have to somehow try to get access to the DNA database. As it stands right now, there is no access.

Those are our overall more over-reaching submissions. Thank you.

[The Vice-Chair, NDP, Jack Harris]

Thank you very much, sir.

We now have a presentation from the Office of the Privacy Commissioner of Canada.

Ms. Bernier.

[Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada]

Thank you. My name is Chantal Bernier. I am the Assistant Privacy Commissioner.

Today, our presentation will be given by Ms. Campbell, our Acting General Counsel. Fortunately for us, she is an expert in the field of biometrics and the author of many articles on the subject. So, she is going to give you the details of our position.

As for me, I would like to remind this Committee of the principles on which this discussion should be based.

Before I pass the microphone to my colleague, I would like to make some broad points that underpin the position of the OPC.

The first point that I think we need to keep at the forefront is that, in principle, a DNA data bank entails a deep invasion of privacy. It does not mean that it should be prohibited. It means that it should be managed with utmost respect for fair balance between security and privacy. This balance is dictated in Canadian law by a few principles that I would like to remind us all of.

First, it is recognized in Canadian law that security may trump privacy. However, it must be done according to some strict conditions. The first one is that the invasion of privacy must be proportionate to the security need it serves. The second one is that the necessity of such invasion must be proven, established, and verifiable in the context of a free and democratic society.

It must also be kept in mind that the information gathered through such invasion of privacy must be used, collected, and retained in a manner that constantly protects its strict proportionality to the objective that the invasion of privacy served in the first place.

Based on the criteria that I have just mentioned, the position of the Office of the Privacy Commissioner of Canada is that the legislation, as it is presently, is justified and that the management by the RCMP meets the criteria of a balance between security and privacy. In other words, we are for the status quo.

I shall ask my colleague to describe our position in detail.

[Lisa Campbell, Acting General Counsel, Legal Services, Policy and Parliamentary Affairs Branch, Office of the Privacy Commissioner of Canada]

Good morning.

The Supreme Court of Canada has recognized on numerous occasions that privacy interests are worthy of protection under the charter and that the Privacy Act has quasi-constitutional status. The privacy of citizens goes to the essence of a democratic state, and it's essential for the well-being of individuals. It also allows for the exercise of many of our other fundamental rights and freedoms. As my colleague said, human genetic data is fundamentally different from other data.

Ever since the science of heredity and variation in living organisms discovered that specific sequences of nucleotides relate to specific inheritable traits, our individual genetic codes have become better understood as a powerful and valuable form of personal information in need of protection.

Genetic information raises privacy concerns because of the limitless amount of information that can be gathered, the unlimited timeframe as regards availability of samples once guarded, and the likely use of information for economic benefit, as well as the potential impact on individuals, third parties, and communities. So the making of a DNA order clearly engages two aspects of privacy that are protected by the Canadian Charter of Rights and Freedoms. The first relates to the person, but the second arises in what's been called the informational context.

In particular, our Supreme Court has observed that DNA contains information of the highest privacy, since it's capable of revealing the most intimate details of a person's biological makeup. Thus, taking and retaining a DNA sample is considered a grave intrusion on a person's privacy. That's the first point I want to make.

The second point is our office's views on the current DNA data bank and its management. In the years since the DNA Identification Act was passed, the scope of the scheme has been expanded, first by Bill C-36, the Anti-terrorism Act, then by Bill C-13. With the addition of the terrorist offences and the Bill C-13 offences, the logic of the program seems to have shifted, and it's important to be mindful of that at this juncture, I think. Instead of primarily being a means of linking the DNA of offenders who've committed serious violent and/or sexual offences with DNA found at the crime scene of similar offences, the data bank is being populated with the DNA of offenders who have committed a much wider range of offences.

We're cognizant of the pressure this committee faces to recommend expanding the database to include more offences, to allow for familial searches, and to increase information sharing. We caution against these measures, given their incursion on privacy interests, and quite frankly, their potential for undermining the overall viability of the DNA database.

Familial searching would allow the data bank to search for near matches, namely close blood relatives who are likely to have similar profiles. But be careful. Familial searching will also produce false positives and false negatives—samples that look like relatives but are not, and close blood relatives whose DNA profiles do not suggest kinship. For these reasons, as well as because of the privacy interests of the individuals affected, we recommended against familial searches.

The Council for Responsible Genetics notes also that keeping an arrested person's DNA on record can threaten their presumption of innocence in future investigations. It highlights the disproportionate number of arrests of persons in visible minority racial groups in the U.S. and the U.K., many of whom are released due to a lack of evidence. Thus, keeping a record of every arrested person would have an imbalanced effect on the privacy of racial minorities. As we know, in Canada the arrest rate for visible minorities and aboriginals is several times higher than that for other Canadians, as is their incarceration rate.

Our act allows for sharing of information from the DNA data bank on a case-by-case basis with foreign jurisdictions, provided there's an agreement in place with that jurisdiction in accordance with the Privacy Act. We caution against the routine comparing of Canadian DNA data bank profiles with international databases. Similarly, it would be inadvisable to link the Canadian database to a central system that would allow foreign states to routinely carry out searches.

This brings me to my third and final point: the international context. It's important to look at what we're doing here in the international context.

Canada is a signatory to several international instruments that stress the seminal importance of privacy. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both speak to the right of the protection of the law against arbitrary interference with privacy. We aspire to live in an open and democratic society that shows respect for fundamental human rights, but increasingly the highly interrelated environment in which we live means we need to be vigilant in order to ensure that Canadians' privacy and other constitutional rights are protected in our interactions with other countries.

It's important to remember the impact on individuals when federal government institutions collect, use, and disclose personal information about them. We may frequently consider the actions of government as simply administrative, but those administrative actions can have profound effects. A recent example of this is what happened to Mr. Arar, as well as to the men whose cases were reviewed by the Iacobucci inquiry.

International cooperation depends in part on negotiations aimed at establishing governance standards for personal information on which all parties agree. However, these government standards are far from being uniform in the case of DNA banks.

The progressive expansion of DNA profiling of sexual offenders to all categories of offenders from convicted criminals, to offenders, to suspects is a serious concern. It is part of the measures adopted in most Western countries, starting with the U.S. and U.K., that have allowed interfering with a number of rights protected in international legislation and in the fundamental law of these countries. However, this progression is not unavoidable and uniform. In Canada, in spite of our proximity to the United States, we have decided to restrict DNA profiling to convicted criminals.

Soon Canadians suspected of offences at the U.S. border will be ordered to provide DNA samples. The new U.S. policy will require that DNA swab samples be taken from anyone arrested in the United States and from foreigners detained at the border who are not legal U.S. residents. Critics of the U.S. databases have pointed out that although all states have a DNA database, the manner in which it's collected and the basis for collecting it varies widely. A majority of the states authorize the retention of samples following profiling and several allow the collection of DNA from those merely arrested for an offence. U.S. law enforcement officials have also resorted to so-called genetic sweeps where they approach family, neighbours, and friends of a victim in a violent crime and ask for a buccal swab. This situation has led many observers to conclude that the differing technical standards and varying criteria as to which circumstances result in a DNA sample being collected adversely affects the validity of eventual results.

The prevalent concern of function creep is particularly relevant in the context of DNA data banks, most notably as the classes of participants expand. Initially dubbed as criminal databases, the probable incorporation of arrestees across more states necessarily questions the purpose of these data banks. There are also serious deficiencies contained in many of the U.S. states' legislative provisions. The DNA databases are not subject to the same genetic privacy safeguards that are applied to samples taken in other situations such as medical examination. Several states also allow the DNA profiles in the databases to be used for other purposes.

I'm talking to you about the international situation just so that we can situate Canada in respect to other countries. If we look at England and Wales, anyone arrested on suspicion of a recordable offence must submit a DNA sample, the profile of which is then stored in the DNA database. England just recently was heavily criticized for this approach in the December 2008 decision of the European Court of Human Rights. It made an important ruling on the privacy of a person's unique genetic information. Importantly, the European court also cited a Supreme Court of Canada decision with approval and they determined that it was an illegal violation of a person's rights to keep a person's DNA sample when they had no prior conviction. They referred to the Canadian Supreme Court's decision in R. v. R.C. of 2005, where our Supreme Court stated that keeping someone's DNA records would have a disproportionately negative impact on their privacy compared to the benefit to criminal justice.

I understand you've already heard about the European case. It was two English suspects. Local police had retained their DNA samples after arrest even though they'd been cleared of criminal wrongdoing. The court commented on the scope of DNA records noting that police retained the sample regardless of the gravity of the offence for an indefinite amount of time without any independent review of their decision-making process. The European court came pretty much to the same conclusion as our Canadian courts and said that the court found that a blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted failed to strike a fair balance between the competing public and private interests and that the respondent state had overstepped any acceptable margin of appreciation.

The influence of other jurisdictions weighed heavily in the European court's decision. Along with Canada, several member nations of the Council of Europe were cited in contrast to England's indiscriminate practices. This illustrates, in our view, the responsibility democratic countries have to one another when setting policy in a new and controversial area such as DNA sampling and retention.

To conclude, we support continued sound management and oversight of the data bank. It should be used only for the forensic purposes for which the DNA was collected, and we urge this committee to ensure that crucial privacy interests are protected in the storage and use of DNA in the data bank.

Thank you for your attention.

[The Vice-Chair, NDP, Jack Harris]

Thank you very much, Ms. Campbell, and thank you all for your most interesting presentations. If you have anything further to leave with the committee, that would certainly be appreciated. I know some of you have given us remarks, and we'll have them translated.

We have members of the committee now who will commence questioning of the witnesses, starting with Mr. Oliphant.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you to all of you. I think I've got the best job in the world. I get to listen to smart people with differences of opinion. That's even better.

My first question is for Mr. Egan. Your association and my own chief of police in Toronto, Mr. Blair, have been requesting an expansion of the DNA process and the collection of data. Today you separated the expansion from the capacity--financial, etc.--as though they're two separate questions. But at your annual meeting in 2007 you passed a motion requesting that the federal government increase funding for the DNA registry analysis. I'm wondering whether you communicated that to the government and how they responded. How much money were you looking for, and what would you say that money was to be used for?

[Constable Derek Egan]

Thank you.

The capacity issue has been a longstanding issue with the police. The processing of samples is not done in as timely a fashion as we would want. The resolution did call upon the government to fund to an adequate level. I believe the estimate of that was in the range of $20 million.

[Rob Oliphant, Liberal, Don Valley West, ON]

Was it tied to the expansion that you have been advocating, or was it just to do what you now do better?

[Constable Derek Egan]

It was to do what we now do better.

[Rob Oliphant, Liberal, Don Valley West, ON]

Ms. Bernier suggested that the criteria that we use for these kinds of incursions into privacy have to do with proportionality and necessity and also how that information is used. That was very helpful for me. When I read the chief of police's statement, it sounds like convenience is the overriding desire. Could you comment on that? I wonder if you really think it's about proportionality and necessity and how you would prove that, in light of what Mr. Rondinelli said about the actual effectiveness, or the diminishing returns on this kind of expansion.

[Constable Derek Egan]

I'm not absolutely familiar with Chief Blair's paper, but in a general sense we view this as a tool. So as a tool, the wider it can be applied, the better. I made reference to the ability to have people who have been convicted of weapons offences placed on the index. It's possible that offence--the possession offence--doesn't in and of itself seem to be that serious, but undoubtedly these people are possessing these weapons for a purpose. And later on, of course, when these weapons are abandoned at the scene of a shooting or whatever, the fact that DNA is in the databank and possibly on the weapon leads very well to the issue of proportionality.

[Rob Oliphant, Liberal, Don Valley West, ON]

All right, we'll have to leave that there.

I have a question for Mr. Rondinelli. I'm not a lawyer, and that's both a plus and a minus in this work. One of the things I was left with from our witnesses on Tuesday, who were mostly from the police sector, was that the DNA analysis in the databank was a helpful tool in exonerating the innocent. There have been some media reports about some wrongfully convicted people recently being exonerated because of DNA evidence.

Is it only accessible to the crown? Is it accessible to defence attorneys? Can you explain that to me a bit, because that's the only reason I would actually favour an expansion, to help the wrongly accused. And if it's not working, I need some help on that one.

[Vincenzo Rondinelli]

Firstly, there's no doubt that DNA has gone tremendous ways in getting exonerations. In the U.S., they're now past 200 wrongful convictions exonerated by DNA, apart from other cases they've had that didn't deal with DNA. Just with DNA, they've had over 200 exonerated.

In Canada, obviously, in Guy Paul Morin being exonerated, the main issue was DNA. But even in that case and other cases where it has been DNA, it's not because of the use of the data bank that they've been exonerated. It's the use of DNA and how it has played into the file, how they end up finding it and how they do their testing, and so forth. It's not with the help of the data bank.

As to how it's legislated presently, obviously there are very strict controls. Again, dealing with the proportionality, the privacy interests, and all of that, when it was passed we were going to keep very strict controls on the data bank. All that can be done is that crime scene samples can be run against convicted offenders' samples. So there are, technically, two silos in the data bank that they run against each other and match.

In terms of access, there is no legislation in play where it can be accessed by the crown or by the defence. Basically, if you're convicted of this offence, it is then sent to Ottawa. They upload it into the criminal offenders index, and then on whatever basis they do it, whether it's daily or every second day, they run it to see if it matches against the crime scene index. There's no access available to anyone, other than the sample being uploaded to the database.

[Rob Oliphant, Liberal, Don Valley West, ON]

My last question is for Ms. Bernier.

I'm probably running out of time.

[The Vice-Chair, NDP, Jack Harris]

You have about a minute.

[Rob Oliphant, Liberal, Don Valley West, ON]

You suggest that the OPC is satisfied with the current management system in its ability to protect privacy. Do you see any advantages? Has your office discussed any advantages of moving the registry out of the RCMP into an independent arm's-length agency, perhaps along with other things, such as fingerprints and the gun registry, into an agency separate from the law enforcement side?

[Chantal Bernier]

I'll pass the microphone to my colleague. I have been at the OPC for only two months, so the briefings I have received so far are too superficial to give you a fulsome answer.

What I have been told so far is that the separation that the RCMP keeps between the DNA data bank and identifiable information satisfies us, but I would like Ms. Campbell to answer more fully.

[Lisa Campbell]

It forms part of our recommendations on oversight of the RCMP as a whole. We have recommended stronger oversight of the RCMP's activities in general. So while we're satisfied that there has been good, sound management—my colleague is part of an oversight committee that's comprised of academics, jurists, and law enforcement who oversee the management of the data bank—we would advocate for continued sound management. If part of that meant separating it, so that there could be some separation from the investigative arm versus the arm that manages the data bank, that could only be a good thing, in our view, although to date we have been pleased with the way that samples are kept separate from identifiers and with the good, strong oversight.

Does that answer your question?

[Rob Oliphant, Liberal, Don Valley West, ON]

Yes. Thank you.

[The Vice-Chair, NDP, Jack Harris]

Thank you very much.

Monsieur Ménard, it's your turn.