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.