Justice Committee on Feb. 27th, 2007

[David Bird]

Well, I can tell you that in order for a sample to be taken from a convicted offender, there had to be a valid court order. If you have a case where...and I think it's a human factor.

My explanation from talking to judges and prosecutors is that the system is complex. In other words, you have a long murder trial, complex evidence; at the end of it you have a number of determinations again on sentencing that a judge has to make with respect to these serious offences: he has to consider whether or not a prohibition order should be made, or whether an application may be made for a dangerous offender.... There are a number of things that may delay sentencing.

The simple explanation is that in the process, DNA orders were simply overlooked, and that no one considered making an order until it was recognized, perhaps, later. Then the court found itself to be functus—in other words, it had no jurisdiction to make such an order—and without an order, the police wouldn't execute it; therefore, no DNA sample was submitted to the bank for an entry in the convicted offender index. That's the general scenario to explain why only 50% or so of the expected primary offences were being received by the data bank.

This was an attempt to say that at least for these most serious offences the court would be required to make such an order.

We have to perhaps deal with the issue that, if that happened, they would have a 90-day extension to allow the court to go back to revisit it. There are some processes we'll have to look at in terms of that—what happens if a court still forgets—and how we're going to have to deal with that potential.

At the moment, that's the explanation I'd give you for why, in the 50% or so of the primary offences, we were not receiving samples.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

Could you indicate, from your knowledge, the driving motivation for the business of potential sharing of the profile with foreign jurisdictions? Is it simply reciprocity with the other jurisdictions? Is it a real belief that information from them will help us? Or is it just a bit of brotherhood amongst friendly law enforcement agencies, that sharing might produce a benefit?

What's motivating this particular amendment to enable more sharing of the profiles? I see the end result. I just don't know what the motivator is, and perhaps you could help me there.

Secondly, something in our visit to the RCMP labs was very helpful to me, and I thank you for it. One of the questions that came up—and it doesn't have to do with the data bank, but with the Forensic Laboratory Services—I want to get on the record, because it came up during our visit.

What happens when Sergeant Jones from Upper River Junction shows up in his pickup truck, and he has 50 pieces of evidence in the back of the truck, and he says, “Mrs. Smith thinks her nephew stole her car keys. Can you just check all this stuff and see what you can find?”—as a fishing expedition? I'm wondering what protocols may exist to better ration, better utilize the Forensic Laboratory Services in the face of what appears to be an open door policy.

If a police force in a contract province—it doesn't necessarily have to be the Mounties, but it could be—just wants to get that stuff checked over for DNA, and it really doesn't fit within priorities....

Could you address that too, please?

[A/Commr Joe Buckle]

Thank you very much. Perhaps I'll address that one, and then I'll ask my colleague David Bird to address your international sharing question.

There's no doubt that we deal within a very broad jurisdiction within Canada. The priorities in one area may be different from the priorities in another area. Rapes and murders are quite uncommon in small towns across this country, but unfortunately some of our larger cities are seeing an increase in those kinds of activities. There's no doubt that for the people who live in those communities, it doesn't matter what the crime is. If they feel it's important, then there needs to be some attention paid to it.

However, within our Forensic Laboratory Services, and I think in forensic services in general in North America, there is a capacity issue. Shows like CSI: Crime Scene Investigation, which we see on TV, have made it more prominent in people's minds. DNA analysis is a very powerful tool. We see greater and greater demand for it all the time.

Therefore, we've had to ensure that we use our resources to try to resolve the most serious crimes first. In order to do that, we have a conversation with these investigators. So if Constable Jones showed up from Upper River Junction and wanted to resolve a case for a person in his community, we would have a conversation with him to determine exactly what type of crime he was looking at. Then we would try to portray the significance of priority and the fact that we would consider rapes, murders, and some of the other designated offences to be of a higher priority for the use of that service, given that we have a capacity issue, than the theft of an automobile. I believe there are other investigative techniques that could be used to try to resolve that crime before we invoked the use of expensive technologies.

Within the RCMP, there are two things we have undertaken to ensure that the resources are more for serious offences. We discuss with the investigator where the most probative value would be in the--you said, 50--exhibits from Constable Jones, who would ask him if he could pick his best six or eight exhibits that would most likely answer the question that he wants us to answer. If we were dealing with a murder, it would be to give us the best six or eight exhibits whereby we could potentially link the suspect to the murder. That doesn't mean that we're limiting it to six or eight in total. It just means that we want to try to get the biggest bang for the buck right up front.

The other thing we're doing is using a system called a priority rating of operational files whereby, through a series of questions with the investigator, we can rank the more serious cases. You can appreciate that we deal mostly with very serious cases--rapes, murders, and sexual assaults of various types. We want to ensure that when we have a case of murder or a rape, or both, and there's no suspect, that gets the highest priority.

Through a series of questions and some software that we've acquired, we can actually rank those cases. We will advise the investigator, “Listen, you brought a case in, we've ranked it, and it falls within our grid as being an A2, and we can respond to that case within this period of time. Is that of help to you, or do you want to discuss it some more?” Sometimes investigators will tell us, “No, that'll work. Our court date is down the road, and we'll get there.” Other times they'll tell us, “No, we really want to get this done.” We'll have that conversation with them to try to ensure that we're actually utilizing those resources in the most efficient manner possible.

Does that answer your question, sir?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Yes, thank you. It does.

[A/Commr Joe Buckle]

Mr. Bird.

[David Bird]

In answer to the question of what the motivator is for the international sharing of DNA profiles, it's simply public safety. It's recognized that Canada has been one of the actual prime movers to encourage international sharing of DNA at the G8 level during sessions there, recognizing that the limited number of sharing that has gone on between Canada and the United States has been very useful in identifying international sexual predators who have committed sexual assaults in Canada and then travelled to the U.S. and Mexico, in various cases. Through sharing of DNA profiles from our crime scenes or foreign crime scenes among the three countries, we have identified international sexual offenders. And on Canadian tourists who have been assaulted abroad, through analysis in the Canadian national data bank or labs, we have been able to share that information internationally, which has allowed us to detect the perpetrators of these offences and bring them to justice in whatever system they were in at the time.

That has assisted dramatically. Those experiences convinced Canadian officials that we should do this on a broader basis internationally to ensure that international sexual predators, international organized crime figures, and potentially terrorists can be detected early in precursor offences, if that's what they're involved with, or in linking serious crimes that they're committing together, so that the nature and scope of these criminal organizations and predators can be assessed and quickly stopped.

Really the prime motivating reason we need to do this, or we feel we should be doing this, is to ensure that, as early as possible, we can connect these various criminal organizations and crime scenes together.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Ms. Freeman.

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

I have a question with respect to the brief submitted by the Canadian Bar Association. On page 3, it reads as follows:

The communication of such information was previously restricted to Canadian agencies only. Again, information could be communicated to foreign bodies in relationship to any criminal offences and not just designated offences.

Why should the exchange of information be expanded to include all criminal offences whereas the communication of information in Canada pertains to only designated offences? We are therefore expanding the transfer of information to foreign countries.

[David Bird]

The purpose of the amendments is to permit, both domestically and internationally, information that links potential crimes together to be used for that purpose. Bill C-18 amended the legislation and changed it to “designated” offences. Previously, it was “criminal” offences. It's really an issue that says, why should we, by legislation, force all law enforcement agencies...particularly in Canada, because we're dealing with that issue as opposed to internationally. They don't necessarily have a designated offence system, so they would use it in accordance with their criminal system that they could take DNA for, but they could only use it for the investigation and prosecution of a criminal offence internationally.

Domestically, if we have the restriction that it could only be used for a designated offence and the police had DNA from a non-designated offence, even though it didn't qualify for data banking, they would be prohibited from using that match for that purpose. It may be unlikely that they would do analysis for non-designated offences, but if they did so, the question is, why should we restrict their use of that DNA to match a convicted offender and get a conviction for that purpose of matching them together? Otherwise, they would not be able to use the DNA match between a crime scene, if they had one crime scene...and then they find it's a convicted offender and that convicted offender is identified; but if they had information in their system that linked DNA to a non-designated offence that they had, they would be prohibited from using it. So we saw no reason to restrict the local police or any other police from using information except for the purposes of prosecution of a criminal offence.

I don't know if you understood the answer. Otherwise, we would be limiting information they were given from the data bank for only designated offences, even though it may help them convict someone for a non-designated offence. We thought it would be wise to remove that restriction, which was putting it back to the original language in the DNA Identification Act.

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

Thank you for this answer.

I know that we can provide foreign countries with information, but all that appears to be very hermetic. On the basis of the information that you have given to us, completely separate entities communicate nominal information through bar codes.

The problem that I have is that all of these totally separate entities always come under the umbrella of the RCMP. The RCMP is always responsible for these entities.

What type of parameters do we need to set in order to prevent the situation of getting out of hand? What guarantees do we have that the information forwarded to foreign countries not go beyond the established parameters?

[David Bird]

Again, Canada has--

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

My question may resemble a question you have already answered several times, but in light of recent situations that have got out of hand, it is a very legitimate one. You have given answers that appear to be very clear, but in practice, things can get out of hand.

What guarantees can you give us?

[David Bird]

The only guarantees I could provide you with are those provided by the DNA Identification Act, which makes it a criminal offence for the commissioner or the commissioner's delegates to use DNA information that the agency has in the National DNA Data Bank for any other purpose than what's permitted by the DNA Identification Act. There are restrictions on the use, and there are restrictions on what can be communicated, and there are further restrictions domestically on further communication by those who receive that information from the RCMP.

So the current DNA Identification Act and the amendments in Bill C-13 are, in my view, very restrictive. The DNA information that the RCMP has can only be communicated as authorized by the DNA Identification Act, section 6, and any other communication is an offence. Similarly, any other research that could be done with the DNA profiles, except to derive a forensic DNA profile, for the purposes of DNA data banking would be an offence.

Those are fairly serious prohibitions, and that in itself should be sufficient, in my view, to satisfy Canadians' concerns that there may be unauthorized or illegal uses of DNA profiles in the National DNA Data Bank. We probably have the most robust genetic privacy regime in any DNA data bank where the people who are using the DNA do not know the personal identification of the person who has submitted it. So the data bank operates anonymously with respect to the personal information. All it has is genetic information, and it has a very restricted legal regime that allows it to communicate only for the purposes that the DNA identification allow it to, and that's to essentially compare the convicted offender index with the crime scene index and report a match, and the moderate matching provisions that allow it to ensure the question, do we have a match? That's the expansion of the regime.

Otherwise, that is essentially all the DNA data bank officials can do with the DNA they have in the National DNA Data Bank. They ask, do we have a match? And then if it does, it goes to another portion that doesn't have the genetic information. All they have is personal.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Freeman.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good morning to all the witnesses.

My question is for Mr. Bird or Mr. Buckle. I will try to be as precise as possible.

Let's suppose that a 14-year old youth is convicted of murder. The offender will not necessarily be treated as an adult but he'll come under a particular piece of legislation. This young man or woman will have to remain in custody for approximately three years, at the most. I repeat: this youth will not be treated as an adult, but we are talking about a case of murder.

One detail seems to be missing. Perhaps the RCMP counsel, Mr. Bird, could answer me. This difficulty may occur in the other provinces. However, I'm not familiar with the legislation from the other provinces. In Quebec, this measure applies to young offenders under the age of 18 who are convicted of murder, except in cases where the young offenders are sent to an adult institution. I would emphasize this nuance.

I would like to know whether or not, in these circumstances, the DNA for this individual would be sent to you or whether or not the judge could ask that this be done.

[David Bird]

The answer is yes. Young offenders are treated, for the purposes of DNA data banking orders by courts, exactly as adults are, and they will be subject to the same designated offences if they're found guilty, as opposed to being convicted. You'll see the various language. But a younger person would be eligible for DNA data banking for exactly the same offences as an adult would be, under exactly the same circumstances, and would have his DNA collected in exactly the same way as an adult would.

There's a distinction in how long it can be retained in the National DNA Data Bank, because as soon as their young offender records are required to be destroyed or the youth criminal justice records are archived, then destruction requirements are separated. So they're not kept in the same system for as long as an adult record, which would be kept indefinitely. That's the only distinction.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My second question may be for Mr. Buckle.

We have DNA banks in Quebec that are not controlled by the RCMP, naturally. They come under the Civil Code and are used to determine paternity. We now have a Superior Court order. We used to do blood tests, but this is no longer done. We now do a DNA test.

The DNA test is always carried out by very specialized companies. They have numerous DNA samples which are used for comparison. These data banks have been around longer than yours and contain more DNA samples that you may have, even here, in Ottawa. In fact, paternity tests have been carried out for many years. Up to 3 000 to 4 000 are done per year.

Do you have any agreements with these laboratories, which are unique, whereby they forward the results of their research? Unless there is an identical system in the other provinces. I am not familiar with common law, which applies in these provinces.

[A/Commr Joe Buckle]

Without validating any of these data banks by my answer, the answer to your question directly is no, we do not have any agreements, nor would we undertake sharing of the data within those types of data banks with the genetic information within the National DNA Data Bank.

Perhaps Mr. Bird would have a comment on the other legalities of the other data banks within the DNA Identification Act.

[David Bird]

The DNA Identification Act does not prescribe where crime scene profiles will come from. It simply obliges the commissioner to deal with what he receives for entering into the convicted offender index, and as a matter of policy and as a matter of the amendments to Bill C-13, that analysis would need to be done by the commissioner himself or someone he would contract to. However, at this time my understanding is that it is done entirely by RCMP officials, and I understand there's no policy change to permit this information, for the convicted offender index, to be contracted out.

With respect to the crime scene profiles, the problems are really related to policy on the use of the CODIS system to transmit information to the National DNA Data Bank. The labs' use of the CODIS system--this is a combined DNA analysis system that the FBI have developed and allow the world to use--allows for a consistent transfer of information, at least domestically, and that's essentially the system we use for exchanging information with the 27 other countries--I believe--that use the FBI system.

It makes for an easier transfer of information internationally, but that's not the primary purpose of it. It's really to allow the internal domestic data bank to operate effectively from the network of labs in Canada. So you have labs in Quebec and Ontario, separate from the RCMP labs, all using the same system to transmit their profiles to the DNA data bank.

My understanding is that if a private lab were to do this work, it would require, under the CODIS rules, that one of the official provincial labs or the RCMP lab validate the results of the research that was done, but that research would not go the other way. You would not be seeing information in the DNA data bank being sent to private labs for their use.

All the information is sent to the National DNA Data Bank, and once it's there, it's under the restrictions that allow for the communication of profiles. The convicted offender index could not be used to transmit information out, except in the case of a moderate match when there's a discussion between perhaps contractors of the police to determine whether or not they have a convicted offender match, but it would be used only for that purpose.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Thank you, witnesses.

I'm going to follow up on some of Mr. Moore's points. Help me understand something, please. If you have over 108,000 samples in the NDDB for the convicted offender index, what proportion of those are from primary designated offence convictions, roughly speaking? Is it the vast majority?

[A/Commr Joe Buckle]

According to our latest data, about 53% of those would be from primary designated offences, and about 46% from secondary designated offences.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

But in either case, I guess there's a concern. Certainly we've been given some information that the way the system works--before the intended law and the intended amendments--at least for primary designated offences, is that there is a 50% rate of insertion into the bank. It's hoped, I guess, that Bill C-18 will cure that by making these mandatory orders.

I respect that. But if you have, between primary and secondary designated offence convictions--there are some 35,000, almost, CSI samples--about 142,000 samples now in the bank, according to your brief, it seems to me, speaking to capacity here, that if this law is changed, we know that there are going to be mandated insertions into the bank, so to speak. So that will increase the volume darn near 200,000 over time. That's not even accurate--forget what I said--but it will increase the insertions into the bank.

There is some history here with respect to a letter from this committee's predecessor to the Auditor General, in May 2005, about backlog. I guess I want some assurance that with the additional $14 million, and the continuing $7 million in funding expected.... There's some concern, as legislators, from a public point of view, as to whether you'll be able to keep up with the demands of this new law.

A follow-up to that would be whether the government has consulted with you with respect to your budgetary needs, and have you given the Department of Justice--keeping the Chinese wall between the RCMP and the Department of Justice—assurance, and vice versa, that the job can be done with that funding?