Public Safety Committee on Feb. 26th, 2009

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

As with my colleague who spoke before me, I wish to tell you that I have very much appreciated hearing your comments this morning. Your presentations are illuminating and they show you are very knowledgeable. I am very pleased to have that discussion with you. As I don't have much time, I shall ask my first question. But I wanted first to tell you of my appreciation.

My first question is for Mr. Egan.

In her 2007 report, if I am not mistaken, the Auditor General mentioned that DNA analyses could be done very quickly in urgent cases which represented 1 per cent of the caseload. In other cases, which represented 99 per cent of the whole caseload, the average processing time was 114 days, which is about three months and a half, even if the goal was a maximum of 30 days.

Would you agree that the maximum processing time should be 30 days? Do you think that having to wait for three and a half months to get the results of a DNA match interferes with the work of investigators?

[Constable Derek Egan]

Thank you.

That question, sir, goes to the very heart of the issue of capacity. The delay in getting samples turned around is a problem. It causes investigations to become stalled. It causes investigations perhaps not to move in the right direction, particularly early on in investigations.

We have worked very hard with the labs in trying to develop a triage system so that, indeed, the most serious offences do get a greater turnaround. You referred to 30 days for those that are urgent or for those that affect a matter of public safety. This has been done through a system called PROOF.

The direct answer to your question is that we would clearly like to see much quicker turnaround times. That is at the heart of our issue with regard to capacity.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I do not know how my remarks were translated, but I mentioned a 30-day period as being the average acceptable treatment time for all DNA cases. It is faster for urgent cases.

Would you agree that a maximum time of 30 days should be the goal for all cases?

[Constable Derek Egan]

Yes, I would.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

You will realize—and Mr. Rondinelli did explain it very well—that expanding the access to the data bank would increase delays. Do you agree with me that we have to make a choice, even in terms of police efficiency? In fact, we can choose to expand the data bank, which would have the inconvenience of delaying the analyses and slowing down the progression of investigations. Personally, I think that we should choose timeliness rather than expansion.

[Constable Derek Egan]

Again, sir, we see these as two separate issues.

We believe the ideal world, of course, would be an expansion of the data bank to capture those offences that I referred to previously as well as an expansion of lab capacity. It's a tool. All cases do not require immediate turnaround. Indeed, many cases do not require turnaround within the 114 days, because there is sufficient evidence to take someone to court and convict them. In those cases, the evidence of DNA perhaps becomes evidence that's just a little more compelling. In other cases, where you have a violent offender on the street and you need to identify this person, you would want that type of turnaround to be virtually immediate.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

Mr. Rondinelli, I have practised criminal law during the whole part of my career preceding my election in 1993, and even when I was Minister for Public Safety and Justice Minister in Quebec. For the major part of my career, I was on the defence side even after having been on the Crown side in the beginning.

As I stopped practising 15 years ago, I would like to know if defence lawyers generally agree that DNA evidence brings certainty beyond a reasonable doubt, which is an important factor in a case.

[Vincenzo Rondinelli]

There is no doubt that DNA plays a big role now, even in terms of files that come across your desk. Five or ten years ago, when it was very expensive to test, you wouldn't get many DNA cases except in murders and very serious sexual offences. I think now our members understand. We have a lot more programs in forensics. It does play a big role. You get them in a number of cases.

That said, I don't think we're at the point where we just throw up our hands and say, every time there is DNA in a case, that we give up. A number of defences still come into play. Even in sexual assault cases, they may have DNA, but consent may be a defence that you still run. It does play, obviously, a big role.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

My last question is for Ms. Campbell or Ms. Bernier.

In the Province of Quebec, our understanding has always been and still is that the organization responsible for forensic science should be seen as having more independence if, even under the same ministry, it would in fact be independent.

Conceivably, communist countries could have a DNA bank managed by the police. In a democratic country, within the context of the criminal justice system, we attach as much importance to the appearance of justice being done as to the fact which points to the independence of justice. Another advantage would be that the budget for the data bank is located within the RCMP general budget. Thus, the RCMP would decide, based on its priority, which part of its enormous budget would be allocated to the data bank.

Would you agree that there should be both justice and appearance of justice and that this should fall under the responsibility of an independent organization?

[Lisa Campbell]

It is a very good question.

We strongly believe in accountability, that is that an organization should be held to account for its activities. As has already been stated, the RCMP should be more closely supervised by Parliament especially to increase control on the use of personal information on Canadians, particularly at the international level as I already said.

So, even if we are satisfied with the undertakings to date, if this Committee or Parliament finds it necessary to place this area under the authority of an independent agency, they would have no problem with this. I agree with you that when it comes to matters of supervision and accountability more is always better than less.

[The Vice-Chair, NDP, Jack Harris]

You have both exceeded your time, and we will have to be fair to everybody.

Who is going to go first on the government side?

We'll go to Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much for coming this morning.

I reiterate the comments made with regard to your expertise and your ability to lend that to the discussions here.

My first question would be to Chief Constable Egan. Chief Egan, we heard this morning, or I think you basically said, that pursuant to the Identification of Criminals Act, the taking of DNA samples is akin to the taking of fingerprints. Is that not correct?

[Constable Derek Egan]

That's correct, sir.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

So it's just to identify the person charged. It is part of the identification.

[Constable Derek Egan]

Agreed. It's another mechanism.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Would it not also be true that when a person is subsequently found not guilty or is actually not a suspect any more--the charge is withdrawn or he or she is found not guilty--and there is no prior criminal record, the person's fingerprints are then destroyed?

[Constable Derek Egan]

They may make application to have that done.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

If we are going to say that the DNA data and fingerprints are the same, would it not make sense that if the person was found not guilty, or if the charge was withdrawn, that the person could have the DNA data expunged from the databank?

[Constable Derek Egan]

That would bring about congruity with the act, yes, sir.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Criminals, of course, we know, know no bounds, either interprovincially or internationally. In your opinion, as an investigator and as someone representing the vast majority of chiefs of police, who supervise investigators, to do your job properly and to protect the people of Canada and your communities, would sharing information with regard to data collected vis-à-vis a data bank enhance your ability to identify the perpetrator of a crime and at the same time to exonerate someone who is a suspect because the DNA evidence removes that person as a suspect?

[Constable Derek Egan]

Yes, sir, absolutely.

One of the shortcomings we have with respect to the international drug trade, for example, is that the information on Canadians who are arrested in the U.S. for being involved in the drug trade and have their DNA taken cannot be entered in the Canadian database.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

Mr. Rondinelli, you mentioned the length of time it takes for processing. You also mentioned that DNA evidence has been instrumental in exonerating people who have been charged and convicted.

We also have to take into account, Mr. Rondinelli, that this compilation of data has been in Canada for roughly only nine years; therefore, any data, and any percentages or analysis thereof, would be premature. Because we now rely so heavily on fingerprint data, would you not agree that because DNA data is so definitive, it is as likely to remove a person or an accused person from the suspect list as it is to convict him or her; therefore, it would be a good tool in the interest of justice because the likelihood of convicting a person of a serious charge would be less likely? In other words, we wouldn't have as many wrongful convictions if we had sufficient data.

[Vincenzo Rondinelli]

There are a number of parts to that question.

I don't think the data bank alone does all of the suggestions you've made. One of the reasons I mentioned the U.K. was that they do have a longer history, and obviously a larger database. That's why the experience and statistics coming out from that country are helpful to us.

Another thing to keep in mind is that as a database grows--and on a statistical basis, this is called the cold-hit paradox--the bigger the database becomes, the chances of false matches grow.

Very quickly, just to give you an analogy, I'm probably the only Rondinelli in this room. Let's say that Rondinelli is my DNA profile, and the database is comprised only of us. Let's say we're all murderers and sexual offenders in here. There's going to be a chance that my Rondinelli will not match with anyone in here in a smaller base. But let's take the phone book for the Ottawa area. If you flip through it, there's probably going to be a better chance that you're going to get a hit with Rondinelli, because there are probably some cousins I have out here that I don't know about. So expanding a database has a whole host of other issues on a statistical basis as well.

DNA definitely plays a role in the criminal justice system in exonerating suspects, but it's not from the data bank that this happens. Police surreptitiously take samples from suspects all the time, then they match them to the crime scene sample. If they don't come to a match, they're struck off their list. That happens, and it's useful, but it's not from the data bank.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

No, it's not from the data bank. But it could very well be that a person's DNA would exonerate or strike him from the suspect list, or, if he is accused, would result in a withdrawal, because the police or the investigative agency would have access to the data bank.

[Vincenzo Rondinelli]

Yes, I'd like to see a scenario of how that would happen.