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.