Justice Committee on Feb. 15th, 2007

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Yost said he has some information on that for you.

[Greg Yost]

If you're referring to the national DNA data bank, they receive the blood samples on those nice clean cards and they put them to the robotics, and they usually have them uploaded within a week. They have no backlog. Their capacity was originally set for 30,000 and they're receiving about 18,000, so they have excess capacity at the national DNA data bank. Clearly, if we begin to get more samples coming in, there will be some extra costs, but they have the equipment, etc., so that's not a problem.

The issue, and I'm certainly not the expert, and I'd certainly want to defer to Public Safety on this one, is at the forensic labs where they're doing the crime scene work. When Bill C-13 as amended by Bill C-18 comes into force, we hope the scope of things that are considered as designated offences will be greatly expanded, because all of those offences punishable by five years become designated offences. They're secondary, but that's still sufficient.

The police could, if they had the resources, go out and get many more samples and submit them to the labs. If the labs had more resources, they could analyse them and produce more leads. You heard yesterday of the efforts being made by the RCMP to reorganize, etc. There is definitely a seemingly insatiable demand for more DNA analysis to be done, but there is a very limited supply of people who are capable, who have the training, and who are able to do that.

On the convicted offender side, we're quite confident that Bill C-13 will be handled within the resources of the national DNA data bank. It will present challenges to the forensic labs.

[Larry Bagnell, Liberal, Yukon, YT]

So are there plans of the government to deal with that problem?

[Rob Nicholson, Conservative, Niagara Falls, ON]

If you're talking about resources, Mr. Bagnell—

[Larry Bagnell, Liberal, Yukon, YT]

For the forensic labs.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I'm not doing this to avoid your question, but because it would come within the purview of my colleague, the Minister of Public Safety, it actually would be inappropriate for me to comment on that.

I hear what you're saying, and I'm sure my colleague, the Minister of Public Safety, is aware of your concerns as well.

[Larry Bagnell, Liberal, Yukon, YT]

Everyone wants to make sure, if it's good legislation, that we can carry it out without causing a backlog in the justice—

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it's going to work. It has to work.

I don't appreciate all of your comments, but I certainly appreciate the comments you made with respect to this piece of legislation, that this is something you support. It really builds on legislation that has been in the works for quite some time, and it actually mirrors, with some technical improvements, bills that died on the order paper about a year and a half ago.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

I have a question, Minister. Am I to assume that the additional offences are all designed as secondary?

[Greg Yost]

Almost all of them are. I'd have to check my notes. We added a couple. We transferred some from the secondary to the primary, and I believe we added one or two new ones. The overwhelming majority are the secondaries and the generic ones, in fact.

[The Chair, Conservative, Art Hanger]

So would some of them be dual procedure?

[Greg Yost]

A very large number of them would be dual procedure, yes.

[The Chair, Conservative, Art Hanger]

So if the Crown proceeds by indictment, they would be logged into the data bank. If they proceed by summary, would they still be logged, or could you still collect?

[Greg Yost]

No, the definition says that for the purposes of making a DNA data bank order, you must proceed by indictment. So they're within the definition, which allows the police to go and seek the warrant, but you cannot get a DNA data bank order unless the Crown has proceeded by indictment.

[The Chair, Conservative, Art Hanger]

Okay. My second question is in reference to those Canadian citizens convicted outside Canada for a designated offence. Can DNA samples be collected from them, as it sits?

On this prisoner exchange program that we have now with....

[Greg Yost]

The answer is no, it cannot be. There is no provision in the legislation allowing that to be done.

[The Chair, Conservative, Art Hanger]

Should there be?

[Greg Yost]

That's a policy question.

[The Chair, Conservative, Art Hanger]

That's a policy question.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Chairman, I'd invite you to look into that matter, and if that matter comes before the committee, I would certainly have a look at that.

I don't think we're talking about a lot of people. I think we're talking about perhaps 80 people or so. That is just to give you a bit of an idea of the scope.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Minister.

Ms. Freeman.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Good morning, minister and gentlemen. Thank you for being here to answer our questions.

Mr. Bird, earlier we talked about information that can be disclosed to other countries. I know there is some information that you can transmit to other countries; you talked about that earlier.

Could you tell me exactly which information and clarify how far you want to extend the exchange of information? That troubles me somewhat. It's also creating some concerns at the Barreau du Québec, which sums up that apprehension as follows, and I quote:

Our apprehension over the danger that the technique might be used for other purposes, that the information could potentially reveal other secrets, that we are gradually witnessing a vast free trade in highly personal information [...]

These are the concerns of the Barreau du Québec.

It's been said that we need treaties. However, we've just learned about the Maher Arar case, in which we saw that, in some cases, disclosed information no longer belongs to us once it has reached another country. We no longer have much control over the use of that information.

I'd like to hear your comments on the subject.

[Rob Nicholson, Conservative, Niagara Falls, ON]

First of all, Madame Freeman, I guess the Arar case underlines how challenging the whole question of exchange of information can be, and that one indicated where and how mistakes could be made.

Mr. Bird said with respect to the provisions of this bill, in terms of DNA, that there are a host of protocols and safeguards in place.

Again, Mr. Bird, would you expand on that for the benefit of the committee?

[David Bird]

Thank you, Minister.

I should clarify that there are two aspects to international DNA exchanges. One is at the request of Canadian law enforcement agencies, who would ask that the crime scene DNA profile they've derived, and for which they have no suspect or answer, would be sent abroad for comparison with international profiles. This would be sent through Interpol to any country the investigating law enforcement agencies had asked or requested the RCMP to send it to—subject to the conditions we explained. They would only be permitted to use that profile for the investigation or prosecution of a criminal offence. They'd have to agree to that particular condition.

At this time, internationally, this is the only way to send a DNA profile—and only the DNA profile, not the sample or the stain that could be analyzed for all the other genetic propensities. These are the 13 loci that were derived, or nine, in some cases, with the RCMP labs, that are sent abroad for comparison. All they would have would be those double numbers that you saw on your tour yesterday. It would be the two, or sometimes only one, at each of those sites they send, those alleles. The foreign country to which it was sent by the RCMP through Interpol would then be able to respond back as to whether or not they have a match with their database for their investigative procedures. This would then be referred to the law enforcement agency, which would use the normal means of communication to identify what information in their investigation matched the foreign information. This would not be done through the national DNA data bank, but directly between the two law enforcements agencies involved—the one in the foreign country and the RCMP.

With respect to foreign requests, when they send a DNA profile here for a search, only now are we able to tell them whether or not we have a match, as a result of the changes in Bill C-13 . We could not tell them and give them a copy of our DNA profile at all. It would simply say, yes, we have a match, are you interested in the personal information? Then they would have to agree to accept the personal information we have through the criminal records section of the RCMP that identified the person. That information would then be subject to the same international Interpol agreement, and we would insist that the information only be used for the investigation or prosecution of a criminal offence.

The problem in many cases is that we don't know whether we have a match, because different systems are used abroad to analyze DNA. They use what we call different analysis kits. Kits are, as I understand them, and I'm not a technical expert, designed so that certain enzymes in those kits produce the DNA profiles from specific engineered zones in the DNA. Certain countries use different zones than we do. In many respects, all we can do is find out that we have a match at three, four, five, or six of the zones of our normal 13, and we don't know whether they match the rest. So in regard to our international exchanges, there is a great propensity for us not to be in a position to tell them definitively whether we have a match, unless we send them the other profiles so they can potentially re-analyze them or examine their information to determine whether we in fact have a match.

So what we're proposing in Bill C-18 is to allow us to do what we can now do domestically in Canada under Bill C-13 , which is to actually send them a profile and ask them if it really matches theirs, or if the profiles are potentially the same because they're close. We'd ask, did you make a mistake in your analysis, or did you report a number inversely and get them mixed up? Then we could say, there was a clerical, technical, or scientific error, and would you re-analyze them? They might be dealing with a mixture of samples. Which profile were they reporting on in their crime scene? Was it correct in their crime scene? There may be a number of reasons, such as a degraded sample that didn't amplify as strongly as it might have. It's for that kind of reason we want to be able to send a profile abroad. We can now do that domestically under Bill C-13 , and we're simply asking for the same power to do it internationally, to ensure that in the many cases that might arise internationally, we can be certain we have a match. Once we know there's a match, we would then go to the normal rules we have in place.

That's all the information that would be sent; it wouldn't be any other genetic information. The sample wouldn't be sent. They wouldn't be able to do a separate analysis, other than what they have on their own files and in their own labs. They would only have this information saying there's the potential of a probable match, and we want to show you our profile to see whether or not it matches yours. The people doing this comparison would not know the personal information; they would not decide to send any personal information about the individuals that we have until they've concluded there is in fact a match that could be sent abroad.