Public Safety Committee on Feb. 24th, 2009

[The Vice-Chair, NDP, Jack Harris]

I call the meeting to order. This is the fifth meeting of the Standing Committee on Public Safety and National Security. We are here, as I believe you all know, to deal with the statutory review under section 13 of the DNA Identification Act.

I want to welcome our witnesses here this morning. We have Mr. Ronald Fourney, director of national services and research for the Royal Canadian Mounted Police. Good morning, sir.

We also have, from the National DNA Data Bank Advisory Committee, the chairperson, Richard Bergman, and the member....

When you're called Peter Cory, I can't, as a lawyer, call you Peter; I have to call you former Justice Cory, formerly of the Supreme Court of Canada. Welcome to our committee, Justice Cory.

From the Department of Justice we have David Bird and Greg Yost, who are legal counsel for the Department of Justice.

Our procedure would be to hear from our witnesses first, and then we have a procedure of questioning by members. Some of you, I'm sure, are familiar with our operations. I understand that each of you will have something to say and that you've organized yourselves as to the order of presentation.

I believe, Mr. Fourney, you are going to lead off or tell us how you're going to present your evidence.

[Dr. Ronald M. Fourney, Director, National Services and Research, Royal Canadian Mounted Police]

Yes, thank you.

Let me say on behalf of the group here that we're happy to be here and look forward to the discussion. The way we're going to organize today's session is that Mr. Yost will lead off from the Department of Justice, followed by my colleague David Bird of RCMP legal services, who is also with Justice, followed then by me, and then by members of the advisory committee, Mr. Bergman and then Mr. Cory.

[The Vice-Chair, NDP, Jack Harris]

I neglected to introduce myself. The sign that was in front of me is for the actual chair. I'm one of the vice-chairs of the committee. My name is Jack Harris, member of Parliament for St. John's East. I believe there is a name card for me somewhere, but that's who I am.

Thank you, Mr. Fourney.

Mr. Yost, would you like to proceed?

[Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice]

Mr. Chairman, members of the committee, it's a pleasure to be here.

Let me begin by pointing out that all of the panellists have worked closely together for many years on DNA issues. I've been counsel on the DNA file in the criminal law policy section since 2002 and lead counsel since 2006.

Mr. Bird has for more than 10 years advised the RCMP and the national DNA data bank regarding practical issues that arise from day to day in applying the legislation. Like me, he attends DNA advisory committee meetings as an invitee. Dr. Fourney has been involved in DNA science since the 1980s and was in a sense the creator of the national DNA data bank. Like Mr. Bergman and the Honourable Peter Cory, he is a member of the advisory committee.

The issues paper that has been distributed is based essentially on matters that have arisen over the years as the science and technology have evolved. These issues have been discussed, often with international experts attending, by the DNA advisory committee. The paper was first written in 2005 and was considered by the advisory committee in December 2005. It has been repeatedly updated since then to reflect developments in the jurisprudence and the science, and successive versions have been shared with the advisory committee. As the committee considers the legislation, I believe it should remember that DNA evidence was being used in courts long before the Criminal Code was amended in 1995 to create the DNA warrant scheme. The warrant provisions are very effective when the police have a suspect.

Where does the DNA data bank scheme fit in? The data bank legislation is intended to identify persons who have left DNA at a crime scene where there is no suspect. If a crime scene sample uploaded to the data bank matches a DNA profile in the data bank's convicted offenders index, the police will be advised of the identity of the offender and they can focus their investigation. It must not be forgotten that when a crime scene profile does not match anyone in the convicted offenders index, all 150,000 persons whose profiles are in the COI are exonerated. If the police thought one of them was the perpetrator, they will know they have to look elsewhere. Obviously the effectiveness of the data bank depends on the number of crime scene profiles uploaded and the number of profiles of known persons against which those profiles can be matched.

Strictly speaking, the legislation does not affect the amount of crime scene analysis being done by the forensic laboratories. That depends on the number of police officers who are trained in finding likely sources of DNA at crime scenes, and also on the capacity of the forensic laboratories to analyze the exhibits that are submitted by the police. If there is a match with a crime scene profile uploaded to the DNA data bank, the police must also have the resources to follow up on that lead.

With respect to DNA warrants and uploading crime scene samples, the legislation initially focused on a relatively short list of mainly very violent crimes. The coming into force of Bill C-13 and Bill C-18 greatly expanded the list by adding all indictable offences punishable by five years or more under the Criminal Code and the Controlled Drugs and Substances Act.

With respect to the convicted offenders index, the present legislation, although expanded by Bill C-13 and Bill C-18, remains narrowly tailored. The police can only take a DNA sample when a court has authorized the taking of the sample upon conviction of a designated offence. Although the list of designated offences was expanded, the legislation requires that for secondary designated offences the crown must apply. Moreover, in the case of the generic offences punishable by five years or more, the crown must proceed by indictment in order to be able to apply for the order. In Canada, the taking of a DNA sample is therefore a judicial process.

In most other jurisdictions, including the majority of states in the United States and most European states, the legislation makes the taking of a DNA sample automatic upon conviction. Most American states began with convictions for a short list of offences, mainly homicides, sexual offences, violent assaults, and burglaries. They then expanded the list to make the taking of a sample automatic on conviction of all felonies. In these jurisdictions, the taking of DNA is a correctional process.

In the United Kingdom, the legislation authorizes the taking of DNA on arrest for any recordable offence roughly equivalent to indictable and summary conviction offences. Some seven American states are now taking DNA on arrest for all felonies, and another seven American states are taking DNA from persons arrested for the most serious offences. In the European Union, eight states take DNA when a person is charged with certain serious offences. The effect of the different systems is dramatic. On page 6 of the issues paper is a very rough estimate.

The present system is producing about 36,000 convicted offender profiles per year. Taking a DNA sample on conviction for the current designated offences would lead to about 113,000 profiles. Taking the sample on arrest of those offences would yield about 195,000 profiles. Therefore, a key issue for consideration is whether to continue to work within but improve the present court-based system or to change the system more fundamentally.

In that regard, the committee should be aware that there appears to have been an overwhelming acceptance by the courts of the utility of DNA and a greater openness to accepting it than may have been anticipated 11 years ago when Parliament was considering the legislation.

In conclusion, I can assure the committee that the Supreme Court has commented favourably on the procedures used by the data bank to safeguard privacy. In particular, in the 2006 Rodgers decision, Charron, J. wrote:

In addition to the statutory safeguards in respect of the informational privacy of individuals, the Criminal Code mandates a detailed procedure for collecting DNA samples. In S.A.B., Arbour J. described in considerable detail the relevant provisions governing the execution of a DNA warrant obtained for investigative purposes. Most of the provisions apply equally to the taking of a DNA sample from a convicted offender for data bank purposes. The procedure is not in issue and need not be described again here. It is not disputed that the taking of DNA samples involves a minimal intrusion on the physical integrity of the offender.

With respect to the utility of the legislation, she also wrote:

There is no question that DNA evidence has revolutionized the way many crimes are investigated and prosecuted[...] The importance of this forensic development to the administration of justice can hardly be overstated.

In my view, in considering the purpose of the DNA data bank provisions, the appropriate analogy is to fingerprinting and other identification measures taken for law enforcement purposes... The DNA data bank provisions contained in the DNA Identification Act and the Criminal Code are intended to put modern DNA technology to use in the identification of potential and known offenders. The DNA Identification Act is a modern supplement to the Identification of Criminals Act.

Clearly, we will have to ensure that any change continues to respect the charter and the privacy rights of Canadians.

Thank you.

[The Vice-Chair, NDP, Jack Harris]

Thank you.

Mr. Bird.

[David Bird, Counsel, Department of Justice]

Mr. Chairman and committee members, thank you for allowing me to be here today.

As my colleague Mr. Yost indicated, I would like to briefly describe some practical problems that I have encountered in the application of the DNA legislation. Police and prosecutors who I've worked with on DNA issues have been universally positive in their praise for the usefulness of forensic DNA evidence and the value of the national DNA data bank in providing links to serial criminals and in identifying new crimes that are committed by the previously convicted. However, they have been less positive on the required process to obtain DNA samples as it is often administratively burdensome and error prone, and the legislation restricts what DNA information the data bank can accept and report.

There are five main administrative problems that need to be resolved to obtain DNA samples from convicted offenders for submission to the national DNA data bank.

The first is, at the end of a trial the police and prosecutors and courts have the burden of deciding whether a conviction qualifies as a designated offence for the purposes of issuing a DNA data bank collection order. It is often difficult to identify the relevant Criminal Code section under which to issue the order, properly complete the required DNA data bank order, and, finally, to transmit the order to the police for execution. It is not always obvious whether a conviction qualifies for a DNA data bank order, especially for historic offences that use older Criminal Code sections that are not directly listed or that require interpretation of punishment sections that determine whether a conviction qualifies. I am told that the requirement to consider issuing a DNA data bank order is often simply overlooked by all concerned.

Secondly, if errors are made in completing the court forms, the national DNA data bank must return the defective order and the police must then ask prosecutors to obtain new corrected orders or the national DNA data bank must obtain a legal interpretation on whether the offence qualifies for acceptance in the data bank.

Thirdly, after a conviction the police must execute the order by finding the person in the correctional system, or if the person is out of custody and fails to appear in relation to a DNA appearance order, seek and execute a warrant for the purpose of collecting a DNA sample. The police do not always have the resources available and in some cases simply forget to pass the orders on so that this is done. In addition, some courts set conditions with respect to where and what type of DNA samples shall be taken and time limits for the execution of the order. Often the police cannot locate the offender in time to carry out the order as a result of the conditions set.

Fourthly, before executing an order the police must verify on CPIC whether the person's DNA is already contained in the data bank. If the DNA is already in the data bank, another form must be completed and forwarded to the national DNA data bank to explain why the new order was not executed. It is always necessary to report back to the court. Substantial police time is required to deal with this process.

Fifthly, the national DNA data bank also spends considerable resources to verify the information it receives, to request corrections to orders, to seek legal confirmation, and to remove DNA profiles and destroy the DNA samples when DNA orders, convictions, or criminal records are quashed or required to be set aside. There are legislative restrictions. These create two problems that relate to what can be submitted to and accepted by the data bank and four problems that relate to what can be reported from the data bank. The most important submission limitation is that victims' and deceased persons' DNA profiles cannot be sent to the national DNA data bank for identification or possible linkage to unsolved crime scenes. With respect to victims, the DNA data bank legislation does not allow the uploading of a known victim's DNA profile to the crime scene index. Whatever the reasons may have been for this restriction, there are circumstances where police investigations are hampered. The most obvious is when the police cannot upload the DNA profile of a victim of a murder to the crime scene index when they are unable by other means to identify the victim. Without the victim's DNA in the national DNA data bank, the opportunity to link serial crimes together may be missed.

As an example where this linkage was made at the local level, it involved the case where a serial rapist put the first person's sweater over his subsequent victim's head so she could not see him. The sweater was left at the second crime scene. The sweater contained hair with DNA evidence from the first victim. Under the present rules that govern what can be kept in the crime scene index, none of the victims' DNA profiles from the various crime scenes could be uploaded or kept in the data bank. Therefore, no national linkage could be made to identify that these victims were linked to the same offender.

The other submission limitation is that not all crime scenes qualify as designated offences. As a result, the DNA profiles from non-designated offence crime scenes cannot be added to the national DNA data bank's crime scene index for comparison with other crime scene profiles or suspect identification by comparison with the convicted offenders index.

There are four problematic legislative restrictions on what the national DNA data bank can report.

The first is that convicted offender index profiles cannot be provided by the DNA data bank to police to be used to confirm identity where no other source of DNA for that person can be obtained.

Secondly, the DNA data bank is prohibited from informing the police of the identity of a person who is a close match to a crime scene index profile that is being compared to the convicted offender index. Although a match is close and likely a relative of a convicted offender, once it is determined that the convicted offender's profile is not an exact match to the crime scene profile, nothing further can be reported. The current legislation only permits the DNA data bank to communicate the identify if there's an exact match or if the person's DNA profile cannot be excluded as a possible match due to a technical limitation on the completeness of the DNA profile that was obtained from the crime scene. However, it is known that parents, siblings, and cousins statistically share more DNA profiles in common than do strangers. For example, even if the DNA data bank were to have a near perfect match so that it was close to being a genetic certainty, for example, that the offender was the brother of a person in the data bank, the data bank cannot report to the police that they should be looking for a close relative of the offender. Nor can the data bank do any further forensic DNA analysis on possible convicted offenders from existing DNA samples, to narrow down the list of the offenders who may have relatives who might be the actual perpetrator of the crime under investigation.

Thirdly, the legislation requires a specific request from a Canadian law enforcement agency to the national DNA data bank to provide DNA profiles to foreign states, to be able to compare them with profiles in their data banks. Foreign states must first enter into an agreement prior to any international sharing of DNA information with the Canadian DNA data bank, to undertake that the DNA information exchanged will be solely used for the investigation or prosecution of a criminal offence. The G-8 countries and Interpol have been considering ways to make greater use of DNA among states, given the complexity, sophistication, and reach of organized crime and terrorism. Canada has participated actively in these discussions.

The G-8 countries have agreed on the concept to develop a direct electronic system to compare DNA profiles among databases. If developed, each country would be asked, as a condition of participation, to agree on the restrictions imposed on the retention and use of the DNA information exchanged. Agreement would be required to use matches only for the investigation of criminal offences, unless other purposes, such as missing persons or mass disaster identification, are specifically agreed upon. Unless the current legislative requirements are changed, Canadian law enforcement agencies will not be able to benefit from a routine exchange of unsolved crime scene DNA. At the present time there are no blanket authorizations from any police force to be able to upload all crime scene DNA samples internationally.

And fourthly, with regard to international exchanges of DNA information, the national DNA data bank is under the same domestic restrictions as to what it can report concerning matches in the DNA data bank. The result is that DNA profiles of convicted offenders who may be internationally linked to sexual predators, organized criminals, or terrorists, or any possible connection to relatives of those suspects could not be reported.

That concludes my remarks. I would be pleased to respond to any questions you may have.

Thank you.

[The Vice-Chair, NDP, Jack Harris]

Thank you.

I don't want to restrict other speakers because the first two have used up a lot of time, but I am mindful of the time. We do need to have time for questions from our members. Perhaps you could be as succinct as possible in your remarks, please.

[Dr. Ronald M. Fourney]

Thank you. I'll try to be succinct.

The National DNA data bank is a program that falls within the scope of the national services and research directorate of the RCMP, which is part of Forensic Science and Identification Services. I'm the director of the national services and research group.

It is my pleasure to come before you to talk about the successes of the national DNA data bank. First of all, I'd like to point out that it's the national DNA data bank's very dedicated enthusiastic professionals who make this program work. Beyond the laboratory group in Ottawa, the data bank itself and the administration of the act represent a true partnership across Canada, with provinces--certainly with the provincial laboratories in Ontario and Quebec--and the RCMP laboratory sites contributing samples that go into what we call the crime scene index. Some of you may be familiar with that. We call that CSI.

I think credit is also due to the law enforcement and government members who make the process work in the interest of justice. The national DNA data bank assists law enforcement agencies in solving crimes by linking crimes where there are no suspects, helping to identify suspects, eliminating suspects where there is no match between the crime scene DNA and the profiles contained in the national data bank, and determining whether or not there is a serial offender.

It is important to understand that the national data bank consists of essentially two indices: what we call the convicted offender index, or the COI, and the crime scene index, called the CSI. The convicted offender index is an electronic database containing DNA profiles developed from biological samples collected from convicted offenders under court order or authorization. These biological samples are submitted to the national DNA data bank for processing, right here in Ottawa, and the resulting profiles are uploaded and entered into the convicted offender index, or the COI.

The crime scene index is a separate electronic index comprising DNA profiles recovered from crime scenes from designated offences. The biological samples are collected at the crime scene by police and are analysed in forensic laboratories operated by Ontario, Quebec, and the RCMP Forensic Science and Identification Services. We are now well into our ninth year of operations. We have more than 154,807 DNA profiles in the convicted offender index and more than 47,135 DNA profiles in the crime scene index. Comparisons between the DNA profiles contained within these two indexes can result in matches, or what we call “hits”, that are investigative aids for law enforcement agencies at both the national and the international level. The data bank is a tool that has improved the administration of justice by helping to focus investigations, linking investigations across Canada, and sometimes reaching back in time to provide that crucial piece of evidence in previously unsolved cases. This ensures that those who have committed serious crimes are identified, while the innocent and the wrongfully accused are protected.

I would remind the committee that it's equally important to remember how this tool provides tremendous exoneration potential when DNA profiles from convicted offenders do not match the DNA profiles obtained from crime scene evidence.

One direct measure of the DNA data bank's success is the more than 11,126 investigations assisted by hits to the convicted offender index. This includes more than 704 murder investigations and more than 1,490 sexual assault investigations. In addition, we have many forensic hits in the crime scene index that link crime scenes together and assist investigations in more than 1,730 cases.

The work of the national data bank extends well beyond our borders. The international sharing of DNA information from the national DNA data bank is managed through an international agreement with Interpol. The information that can be shared internationally is subject to this agreement, which limits its use to the investigation and prosecution of a criminal offence while maintaining the same strict requirements for data integrity and privacy as would be applicable domestically.

To date, as a result of this agreement, the national DNA data bank has provided assistance in four investigations at the international level. We do many searches as well.

An important milestone for the national DNA data bank was the full proclamation of Bill C-18 and Bill C-13 last January 2008, which added in excess of 172 designated offences to the list of those eligible for inclusion in the national DNA data bank. The results have been dramatic, with an increase in the number of convicted offender collection kits received by the national data bank from 18,467 the previous year, 2007, to a current 32,326 in the 2008 calendar year. This represents a 75% increase in the number of collection kits received in the first year that Bill C-18 and Bill C-13 had been fully proclaimed.

The automated technology and the processes employed by the data bank have been envied by many forensic laboratories in the world. The effectiveness and the efficiency of the automated protocols utilized by our national DNA data bank’s highly experienced and qualified scientists and technologists are demonstrated by the fact that there is no delay in processing samples for entry into the national data bank, even with a 75% increase in the number of samples we received in the past year.

In many ways, our protocols are unique in the ability they give us to track each sample, while at the same time ensuring the complete privacy and security of all samples and data. It gives me great pleasure to report that the data bank itself is recognized as a quality system, having passed the highest accreditation standard for a laboratory of its kind.

I hope that my presence here before the committee will help you and that I can answer any questions you may have. Thank you.

[The Vice-Chair, NDP, Jack Harris]

Thank you, Dr. Fourney.

Mr. Bergman is going first.

[Deputy Commissioner Richard Bergman, Chairperson, National DNA Data Bank Advisory Committee]

Thank you, Mr. Chairman.

I'll be as quick as possible. I know you're pressed for time.

[The Vice-Chair, NDP, Jack Harris]

Please take your time. I don't want you to have anything less to say than your other colleagues.

[D/Commr Richard Bergman]

Okay, thank you.

I'm appearing here today with two fellow colleagues from the National DNA Data Bank Advisory Committee: the Honourable Peter Cory and Dr. Ron Fourney. Due to previous commitments, other members of the committee were not able to attend.

The National DNA Data Bank Advisory Committee was established through regulations in early 2000, several months before the actual data bank opened in June of that year. The committee was composed of eight members, consisting of a chairperson, a vice-chairperson, a representative of the Office of the Privacy Commissioner, and up to six other members, who may include representatives from the police, legal, scientific, and academic communities.

Committee members are appointed by the Minister of Public Safety and the committee reports directly to the commissioner. The role of the committee, as stated in the regulations, is that the committee shall, when it considers it necessary, or upon the request of the commissioner, advise the commissioner on any matter related to the establishment and operations of the national DNA data bank.

The committee generally meets for two or three days at a time, normally twice a year in Ottawa. The meetings have also been held in Vancouver, Toronto, and Halifax.

Seven of the eight present members have served continuously on the committee since its establishment nine years ago. The representative of the Office of the Privacy Commissioner has changed from time to time since Mr. Bruce Phillips retired in late 2000.

The committee is fortunate to have Dr. Ron Fourney, who is an adjunct professor at Carleton University; Dr. George Carmody, a retired associate professor of biology at Carleton University; and Dr. Fred Bieber, an associate professor of pathology at Harvard University, as members, each of whom are internationally recognized experts in their fields and have published extensively on human forensic DNA issues.

During my tenure as a director of the labs, Dr. Fourney joined the RCMP as a civilian member in 1988 to lead the development of DNA technology and ultimately to build the national DNA data bank. His technical stewardship ultimately led to the creation of that data bank. Also, Dr. Fourney was the first Canadian expert to actually appear before a Canadian court on a DNA issue.

Dr. Carmody, the vice-chair of our committee, recently chaired a subcommittee of the U.S. scientific working group on DNA and local methodology, which published an important paper on moderate matching techniques. He's considered to be one of North America's leading experts in population genetics.

Dr. Bieber has published extensively on familial searching and has served on several expert DNA committees in the U.S. and internationally. He was a member of the Kinship and Data Analysis Panel at the U.S. Department of Justice to assist in the identification of those lost in the World Trade Center tragedy.

Dr. William Davidson, a professor and former dean of science at Simon Fraser University, has published extensively on molecular evolution, population genetics, genomics, and human genetics. He is currently a principal investigator on the Atlantic salmon genome project.

Madam Gisèle Côté-Harper, a professor from Laval University, has served on the Canadian Human Rights Tribunal, the Quebec human rights commission, the RCMP public complaints committee, and is an independent expert on the United Nations Human Rights Committee.

The most senior and highly respected member of our committee is, of course, the Honourable Peter Cory, a retired Supreme Court justice and presently the chancellor of York University. His distinguished background is well-known to all of us and his accomplishments are simply too numerous to detail this morning; however, our committee has profited immensely from his wise counsel during our many meetings.

We have also benefited from the information and guidance provided by Mr. Greg Yost and Mr. David Bird, both legal services. We're grateful for their timely advice.

We were recently advised that Mr. Raymond D'Aoust, our recent representative from the Office of the Privacy Commissioner will be retiring. Madam Chantal Bernier, now the Assistant Privacy Commissioner, will be joining the committee.

Our meetings include extensive briefings by the officer in charge of the data bank, the manager of the data bank computer systems, the DNA research office's field training coordinators, and a retroactivity project representative. Also included are briefings from the Ministry of Public Safety, the Ministry of Justice, and a representative from the DNA components of the six RCMP regional labs. The Centre of Forensic Sciences in Toronto and the Laboratoire de sciences judiciaires et de médecine légale de Montréal also attend our meetings.

From time to time we are also able to meet with senior officials from the United Kingdom DNA data bank and the FBI's national DNA data bank in Washington.

We also profit from advice provided through telecom links with directors of state laboratories in the U.S.

In meetings outside of Ottawa, the committee also meets with senior crime investigators from local police forces and provincial crown attorneys.

In addition, committee members have participated in national and international scientific meetings and several provincial and judicial conferences here in Canada. Examples of the issues discussed include topics from sample kit and documentation design through exhibit receipt, processing within the national data bank, and the ultimate inclusion of the profile within the data bank itself. Specific subjects include procedural adherence to the DNA Identification Act and regulations, privacy concerns and methodology, exhibit handling, protocols for sharing information, new technology development, budgets and staffing issues, legislation, and discussion concerning developing issues such as a missing persons index for Canada, victim sampling, and familial or kinship searching.

The committee has made numerous suggestions and recommendations to the commissioner during the past nine years. They've always been received and acted upon in a constructive and progressive way. Our annual reports are publicly available on the Internet.

On behalf of the committee, we're pleased to state that in our opinion the national DNA data bank is a significant success story. I thank you for the invitation and would be pleased to answer any questions.

[The Vice-Chair, NDP, Jack Harris]

Thank you, Mr. Bergman.

Justice Cory, would you like to say a few words?

[Peter Cory, Member, National DNA Data Bank Advisory Committee]

I have very, very little to add, Mr. Chairman.

If I were a member of this committee, I'd like to know if I were getting money's worth from it. I think you are.

There are all sorts of attributes to it. First of all, the dedication of the members who are in the scientific field is impressive. They've read every paper, their clarity of thought and of expression is first-rate, and the work the committee does is worthwhile.

There's an American statistic that shows DNA testing indicates that in 26% of cases the prime suspect is eliminated. That alone pays for itself when you think of wrongful convictions and the amount that's paid with regard to cases like Sophonow and all that it does to destroy the reputation of the justice system. That alone makes it worthwhile.

The aids to solution of crime are also there and are shown.

What would I say if I were asked what would be an improvement? There are two very simple things. One is an automatic requirement of the taking of samples in all the offences that are now designated. Sometimes, even in the most serious cases, judges do not order the taking of samples. I don't know why that happens. It shows the obduracy and the narrow-mindedness of judges generally, and I'll take full responsibility for that. It just shows how necessary it is to do something like some of the other systems do. This is the crime. It's taken automatically at the penal institution. It's taken away from judges and lawyers and gets down to sensible people doing what's required in order to supply the necessary samples to the bank.

Here is the second thing, if I had my druthers. Sometimes it's so frustrating when you see the report that indicates, no, there isn't a match, but the wrongdoer must be a brother of, father of, or son of someone in the convicted offenders index. Why tie the hands of the investigating forces with something as clear as that? Yet we cannot do anything with regard to that advice without legislative changes.

There are other things, long-range things that I think have to be considered. At some time there should be complete independence of the data bank from the RCMP, to take away any indication or taint of undue influence, just the perception of it. And at some time we're going to have to deal with the missing persons index. It's probably best taken care of through the data bank, with these facilities now, but with the proper safeguards, privacy. The committee does wrestle with the correct balance between proper investigation and the privacy issues that are always there, and the balance has to be kept.

That really is it, other than to say it's one of those things where it's a pleasure to serve on the committee, with the colleagues on the committee. It's a very small amount that I can help you with. I'm probably better at answering questions than anything else.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much for your presentations. Unfortunately, I didn't get here on time for all of them.

I'd also like to thank Mr. Harris for filling in for me.

Without any further ado, we look forward to the comments and questions, beginning with the official opposition.

Mr. Kania, please.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you.

I think it's a very worthwhile program. I think we can all agree that we're here today to see what we can do to make it better.

I'll put my first question as a lawyer to Justice Cory. I'd like to hear about what you think the wisdom is in terms of eliminating the DNA samples of young offenders when their records are to be expunged, in contrast to, as I understand it, keeping the fingerprints of young offenders on file. I'd like to hear from you on that point.

[Peter Cory]

It was something that the committee discussed and debated. As you know, in Canada, we have always recognized that there are special safeguards that are necessary for young offenders, with their vulnerability and the desire to show themselves as big and tough. They're hardly that, but they believe they are.

In the same way, I think probably the wisest thing to do is to maintain that approach with regard to DNA samples. It's so easy to destroy the future of a young person and so difficult to get the young person back in a way that will serve society and that individual. It isn't an easy question. It was debated and that was the conclusion we came to within the committee.

[Andrew Kania, Liberal, Brampton West, ON]

In terms of a general question, since this act came into force in 2000, what scientific developments and advances would actually require the changing of this legislation at this stage?

[D/Commr Richard Bergman]

Perhaps that should be answered by the scientific staff.

[Dr. Ronald M. Fourney]

Since I began dealing with DNA in 1988, when I first started with the RCMP, I think there's been a major change every few years. The technology has to evolve to the sophistication of the ability to discriminate individuals, that is, the identity. We also are becoming very good at getting a lot of information from a very small sample and some of the most challenging of those samples.

Essentially, this technology is always moving quickly. I would think the responsibility for the national data bank under the custodianship of the commissioner is to ensure that our best technologies are always being put forward to provide the highest-quality result with the most amount of information and discrimination.

From that perspective, it is a considerable challenge. As scientists, we enjoy change. But that's not so for all the individuals we deal with, such as the courts, for instance, and the legal community that has to serve the courts. They've become used to one technology, and we've switched it on them. I can remember when testifying in the Legere trial, they suggested that we should be licensed, or something along those lines, with the changes in technology.

I would think we're doing very well in the data bank. The automation that we put forward in early 1999 and 2000 is serving us well. But as scientists, we're going to change that technology. There's going to be a faster, quicker, and better means to determine identification.

From the World Trade Center, we know that the technology utilized in some of those most difficult samples is just now entering into the forensic community as a routine process. There are technologies involved, such as what we call Y-STRs. It is essentially the ability to zero in on the discrimination of the Y chromosome that is found in all males. It becomes a very significant technology if we have a sexual assault, where there are multiple donors of the sample, for instance, a semen sample. It's a way of discriminating that. We fully envisage that many of these technologies that are just being explored today will become in vogue with forensic scientists all over the world.

The data bank will have to maintain that pace. You have to realize that the national data bank is truly a national service. Although it falls under the custodianship of the RCMP, it is a library of information that is provided not only to the RCMP forensic laboratories but to those laboratories serving Ontario and Quebec. If those laboratories want to change the technology, for instance, to improve the information they can get from the crime scene index, we're obligated to have a look at that as well if it's in the national DNA data bank.

[Andrew Kania, Liberal, Brampton West, ON]

With the proclamation of Bill C-13 and Bill C-18 you've had a lot more work to do. I'm wondering how you're coping with the additional workload and how that relates to the budget you have. It says here it's $2.6 million in the last fiscal year. I'd like to know how you're coping with that and frankly, to be blunt, whether you have enough money.

[Dr. Ronald M. Fourney]

We've done very well with what we have, and obviously with every change of legislation. The last one in particular—a 75% increase in the number of DNA samples. That's with a staff of 24 individuals. Our full budgeted staff would be 32.

Originally when this data bank was created it was envisaged at around $5 million a year. What we're averaging is between $2.5 million and $2.8 million, and that's just on supplies, equipment, and basic payroll. There's a lot of other infrastructure that the RCMP provides with regard to security, the building, maintenance, and other things that aren't counted in that annual report estimate. I would think that if there was any change in this legislation, such as time of arrest, we would definitely have to hire more individuals and equip our facilities a bit differently. It's like anything else.

The way the DNA is processed is with a standardized kit. When we first started this technology way back in 1988, some of us were the creators of what is now in the kit internationally. I find myself actually using technology that we helped create. I think it's important to realize that once this becomes commercialized, it also has a price associated with it. So more samples are going to cost more money to process.

The long and short of it is—I think I'm on record—we're pretty good up to about 60,000 samples as long as we escalate our staff numbers and keep upgrading our equipment. Beyond that we will have to very carefully consider the changes that are necessary to absorb more information to develop those DNA profiles.

In terms of the funding, the national data bank has not received any external funding since 2005. It's all money associated through RCMP internal resources at this time, so there is no A-base funding for the national data bank. I think that's one of the issues that certainly the advisory committee has pointed out on a few occasions.

Overall we're doing well, but any changes with technology are going to cost more money, and I think we would have to handle that with more staff and more equipment.

In terms of the estimated cost of change, it largely depends on how big the sample collection and processing umbrella would be. At time of arrest, I think my colleague Mr. Yost has indicated that perhaps 195,000 more samples would be envisaged.

In view of that, depending on the safeguards put in place with such an event, we would also have to take out a number of samples. Potentially 32% of what goes in would have to come out at time of arrest for reasons such as the courts have found the person exonerated, or what have you. With the system we've developed and the privacy and security surrounding it, no one in the national data bank actually knows the identity of the individual they're processing. Because of the number of walls and privacy shields that are put in place, you can imagine what would have to happen to take a sample out. That's an awful lot of work. In some ways, and I don't want to guesstimate on the cost, it could be as expensive to take it out as it is to put in.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We'll now go over to the Bloc Québécois. Monsieur Ménard, please.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chairman. I would like you to give me a 30-second notice before the end of my questioning, so that I may ask a small question. You will not regret it, I swear.

I also practised law for years. Justice Cory, it would seem that you answered the first question I wanted to ask. We are here to do a five-year statutory review of the act. Do you not believe that, at least in the name of the appearance of justice but also for other reasons, it would be preferable for this type of data bank not to come under a police force, but rather fall under an independent arm's length organization within a department? You can just imagine, for instance, what a communist regime could choose to do with these types of data banks. Do you not believe that, in the type of democracy we live in, we believe that not only is justice important, but the appearance thereof as well?

[Peter Cory]

Forgive me if I respond in English. Following the Sophonow case, I spent two years in England and Ireland on their collusion inquiry into the six murder cases, and there wasn't

no newspaper, no radio station, no French-language television station. You'll have to excuse me—and so will my mother.

You said something that's very important, but appearances are also extremely important, particularly with regard to matters judicial and legal. And by that I mean the appearance of complete independence. Sometimes that difficult issue has to be dealt with for the sake of the ongoing reputation for independence and reliability of the national data bank, which has become such an important and integral part of crime investigation and for seeing that the innocent are acquitted.

How is that going to be done? With difficulty. You have heard of the assistance that the data bank receives from the Royal Canadian Mounted Police: security of the building, security of the samples and everything that has gone into that. That represents a great deal of extra funding that is right there, which would have to be replaced to give that independence that I think is eventually going to be essential to the operation of the data bank.

So I remain committed to the importance of appearance, so that every layperson can say, yes, it is a reliable and independent organization. But it's going to have to take into account funding in these difficult times, which we all realize are a real problem—an emergency. If you take away the RCMP assistance that the bank now receives in so many ways, the bank will require a significant amount of additional funding. That is something that has to be taken into account in arriving at the balance.