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.