Justice Committee on Feb. 27th, 2007

[Anne-Elizabeth Charland]

It would be 40,000 samples in addition. This is based on what we expect to receive.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Would you be the competent witnesses to ask about the provisions that would allow for DNA sampling for any investigation related to a suspected criminal offence, the communication of DNA information to any foreign entity or agency of a foreign entity, and on the controls that are put into place with the legislation or lack thereof with regard to that communication? Are you the witnesses I should be asking these questions to, or should there be other witnesses?

[A/Commr Joe Buckle]

Mr. Chair, I'll ask Mr. Bird to respond.

[David Bird, Senior Legal Counsel, Royal Canadian Mounted Police]

Thank you, Ms. Jennings.

The answer is that the RCMP commissioner will be responsible for the transmission of the information that it has in the DNA data bank that it is allowed to transmit, so that the commissioner's delegates are the appropriate people to answer those questions, in my opinion. I tried--

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

So you're not in a position to comment on the wisdom of the provision in Bill C-18 that would allow the RCMP commissioner and his or her delegate to communicate information contained in the national DNA bank to any foreign entity or agency thereof.

[David Bird]

I would think that the witnesses here are capable of doing that.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

They are capable--

[David Bird]

Yes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

--of discussing the actual wisdom of having that kind of provision and, if the provision is in fact there, what kind of controls should be put in place to ensure that the information is used in accordance with Canadian law--Canadian Constitution and charter--and should there be breaches, that there are also provisions that would allow the Canadian government to put into place sanctions or whatever remedial action.

These witnesses are competent to answer those questions.

[David Bird]

I think I would probably be the person you would address those questions to.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Then would you answer them?

[David Bird]

I'll try my best.

Your first question is about the wisdom of allowing this to take place. In essence what happened in Bill C-25--or it's Bill C-13 now--chapter 25 of the Statutes of Canada 2005, was to permit the domestic sharing of information concerning what we call a moderate match.

I don't know if you recall the last testimony that we had—I think you had to leave when I tried to respond to your previous question on this—but it should be on the record.

Moderate matches are cases where we don't understand whether or not we have a clear match, given the scientific problems of analysis. I understand there are cases where you have mixtures of DNA from victims and perpetrators. You have cases where DNA evidence is degraded due to age. It's an old crime scene, or bodies are found and it's difficult to be absolutely certain what those amplified DNA profiles are.

So in the convicted offender index you have what we call, or at least what the scientists inform me is, a gold standard. These are samples, body substances, taken from people at the time—usually blood in clean circumstances—from which they are able to derive very good profiles. In most cases the amount of scientific failure to derive a profile is statistically very small in the number of rejected cases. I can't tell you what exactly that is, but it's very small. So we have a high reliance on the convicted offender index profiles. The crime scene profiles can be mixtures, degraded profiles, so it may be difficult to tell whether or not there is exactly the same profile from the crime scene.

So the ability was put into Bill C-13 to allow moderate match profiles to be exchanged. There's no personal information. It's simply a matter of putting to the people in the crime scene labs: here's the profile we have; is it possible that the profile you have is the same but you just misread it, or you weren't able to derive it properly? Then they can reanalyze and say yes, this is a match, or no, it's not. The personal information would then be requested separately for further investigation. It may be linked to another crime scene; it may be linked to the convicted offender index. That's the reason we have this provision in Bill C-13.

What we're asking for in Bill C-18 is the ability to do exactly the same thing with national comparisons.

As I tried to explain before, there is a great chance that international comparisons will be using parts of the DNA profile that we don't necessarily analyze in our system, but they do. So there may be only a limited number of matches between the same loci, and that leads to a higher incidence of probability of moderate match requirements to determine whether we have an exact match.

If this work isn't done at one level, in other words, as much as possible to reduce the potential matches.... It speeds up the investigations internally. It could be in the interests of our police forces to know whether we have an international offender, and it's certainly of interest to the foreign countries, for the same reason, to link crime scenes or offenders who are operating internationally together. Hence speed is of the essence in many of these investigations.

The result would be a speedier resolution of whether or not we have a match. If that information can't be sent abroad, then chances are it would be simply said that we don't have enough information to tell you whether or not you have a match. Then the information may be stalled, even though that could result in information of use to the police as an investigative lead in resolving an international serial offender, a terrorist, or some other event that is going on.

So the impetus for this international sharing is to simply ensure that the correct information about matches can be resolved scientifically between the analysts. There will be no sharing of personal information or even the resolution of a potential crime scene until it's resolved between the scientists whether or not they have a match, or a close enough match, that they'd want the information about the offenders or the other crime scene that it would link to.

So it's really to allow internationally the same thing we've been allowed to do domestically, and no more information will be shared internationally than would be allowed domestically for the same purposes. It's subject to our international agreement through INTERPOL, which limits the use of all of this information for the investigation and prosecution of a criminal offence. That's required now of the commissioner by the legislation and the DNA Identification Act, and it's been done through an INTERPOL master agreement. Each exchange of information is subject to a reiteration of the conditions that apply to the transfer of that DNA profile.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Jennings.

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

Welcome.

We are obviously in favour of the spirit of the bill, but the issue at hand is how far should we go. We agree that the taking of DNA samples and the subsequent analysis of these samples may assist with investigations and even, in some cases, protect the wrongfully accused.

Representatives from the Canadian Bar Association will not be testifying, but they did submit a brief. The Bar is always very enlightening to parliamentarians sitting on this committee. This brief cautions us against adding conspiracy, found in paragraph 8(5)(e) of the bill. Included in 30 or so offences that have been added, conspiracy can lead to the taking of DNA samples without an individual having perpetrated a planned act.

In some respects, are we going a bit too far by expanding the list of designated offences?

That is my first question; I will have two others. I would imagine that this question is more for Mr. Bird than the others.

[David Bird]

I may be able to help on this particular point.

My understanding is that the expansion is to allow, in the retroactive scheme, the addition of conspiracy to commit murder to the list, for the purposes of the DNA data banking regime and the warrant scheme. Expanding this beyond the persons involved in committing or attempting to commit the very serious offence of murder would also extend it to those who have the propensity to assist in that kind of crime. Even though they may not be leaving.... They could, I suppose, if they did this by leaving DNA on an envelope; if it's conspiracy, it's possible that you could have DNA evidence linking them directly. But it would also mean the police would be able to collect their DNA profile for data banking purposes in the future, allowing designated offences to be connected to them, should they commit those offences in the future.

[Réal Ménard, Bloc, Hochelaga, QC]

I do not think that you understood my question.

I understand what it could mean, ultimately, to have DNA samples of people planning conspiracies. However, the Canadian Bar Association states that paragraph 8(5)(e) would add to the list conspiracy to commit and attempt to commit certain offences, although the actual result may be the planning rather than the carrying out of an act.

Is it wise on the part of the legislator to allow the taking of DNA samples considering the potentially intrusive nature of such a measure in identifying individuals for offences that have not been perpetrated but are at the planning stage? Of course, it is possible to lay charges of conspiracy. That exists under section 465 of the Criminal Code. Nevertheless, we are talking about samples here. I am wondering whether or not we've gone too far by expanding the list.

Perhaps you are not quite the right person to answer this question, but I did want to express this concern to you. Ultimately, we will have to invite the minister to reappear so that he can explain why conspiracy has been added.

Mr. Buckle, could you please clearly explain the difference between the work done by the National DNA Data Bank and the Forensic Laboratory Services, which are available in five provinces. I think that I grasped the difference, but it would be good to have it repeated. How do these two entities distribute the work? How are they complementary?

[A/Commr Joe Buckle]

There are three forensic lab systems within Canada. The RCMP has a lab system with forensic laboratories in British Columbia, Alberta, Saskatchewan, Ontario, and Nova Scotia. We provide DNA services from our Vancouver lab, our Edmonton lab, our Regina lab, the Ottawa lab, and the Halifax lab. In addition, the provinces of Ontario and Quebec have labs from which they provide DNA services as well.

Concerning the division of the work for types of Criminal Code offences, Consulting and Audit Canada has provided a report indicating that the RCMP forensic labs undertake somewhere between 45% and 50% of the Criminal Code work for primary and secondary designated offences, and the rest of the work is split between the other two labs.

Does that answer your question?

[Réal Ménard, Bloc, Hochelaga, QC]

I really want to understand the division of work. When we visited your facilities, we were given an explanation of the process for analyzing samples.

What is the exact role of the laboratories with respect to that?

[A/Commr Joe Buckle]

I'll restrict my remarks to the RCMP because that's the system I understand the most.

Within the RCMP forensic labs, samples are collected within any of the jurisdictions in which the RCMP provides policing services, and in fact by other police departments within those areas as well. The analysis to determine the DNA profiles is undertaken in Vancouver and Ottawa. Within this fiscal year, we will be opening another DNA processing facility in Edmonton.

We have the ability to report on the DNA profiles. In other words, we look at a DNA profile from a scene and from a suspect and are able to determine if there is a match or not. We can make those reports from any one of our five facilities where we have DNA forensic scientists.

[Réal Ménard, Bloc, Hochelaga, QC]

All right.

Do I still have some time left?

[The Chair, Conservative, Art Hanger]

No, Mr. Ménard, your time is up, actually.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, gentlemen and madam, for being here.

Mr. Bird, I'll go to you first, because we didn't get to ask this question at the last session when the minister was here. We're being told that Bill C-13, now chapter 25, has not been put to use because of technical purposes, and that Bill C-18 corrects those. I don't see that. I don't see where Bill C-18 does anything to advance Bill C-13, so could you point out to us where it does that?

[David Bird]

I'll do my best.

When Bill C-13 first arrived, its purpose was really to deal with the problem of what we call non-designated offences being sent in by courts. Those offences were kept in the data bank unanalyzed, but undestroyed, because we had a valid court order. But on the face of it, they looked defective to the Commissioner of the RCMP, and he didn't want to put offences into the data bank that didn't qualify, and he had no real way to deal with them. So a number of amendments were brought in to allow the commissioner to send those cases back to the attorney general of a province for review. Part of that was to allow the attorneys general to seek advice from the courts--in other words, to have the order quashed and dealt with.

After consultation with the attorneys general, they were of the view they could give advice to the RCMP commissioner without having to go back to a court to quash all of these orders. They said, in their opinion, if they confirmed the opinion of the commissioner this was a non-designated offence, the commissioner should be able to destroy it based on that advice.

So that change was put into the legislation.

The other issue was to deal with—

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm sorry, but just before you go on from that, I'm not sure what we're doing at this point. All we're saying is that we'll accept the recommendation from the respective attorneys general, and the RCMP lab will follow that?

[David Bird]

That's one of the Bill C-18 changes, so it changes that.

Another change, which the RCMP asked for, was to deal with this issue of moderate match reporting, which it didn't have the authority to do under the DNA Identification Act as it was written prior to Bill C-13.