Public Safety Committee on Feb. 24th, 2009

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

The idea, however, of having it come under another major organization may be a disadvantage from a financial standpoint. If this other organization has a number of priorities and has to use its limited funds to address all of them, in the end, there may not be enough funding for the data bank.

I have noted that, despite a stated 30-day turnaround time to deal with current investigative requests, the average response time is now 118 days in 99% of cases. That seems to be what is indicated in the notes that have been circulated to us.

We all believe, and I'll be the first to say it, that Ms. Arbour underestimated the significance of the data bank when it comes to fingerprints. Extraordinary progress has been made for the advancement of justice and we now have the assurance that many fewer innocent people will be convicted, which is already quite something, but victims may also be able to track down their abusers, specifically in cases of rape but also in other cases.

My question is for all of the witnesses. Do you indeed need more money to reduce your turnaround time from 118 days to 25 or 30?

[D/Commr Richard Bergman]

Thank you for the question.

In fact, the word “backlog” has come up in the past, and the issue of 180 days relates to the actual time taken for samples to be analyzed by the regional laboratories, the six RCMP labs, the Centre of Forensic Sciences, and the Montreal lab, all of which are backed up and take time to process samples from crime scenes. The data bank actually has no backlog. It never has had a backlog, and in fact every case goes through the data bank in less than a week. So there are two separate issues here, sir.

[Peter Cory]

Your issue is demonstrated to us in Halifax, when police were advising us that it often took too long--90, 180 days--and as a result they weren't even submitting DNA samples.

Those issues for the local data banks and laboratories are something distinct from the DNA data bank itself, but for the use of DNA, all I can say is that I found it extremely worrying and something that should be of general concern because it can help with regard to the investigation, the identification of a wrongdoer, and the exoneration of the innocent.

[The Chair, Conservative, Garry Breitkreuz]

You have 30 seconds.

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

I have a very brief question. My wife and I knew that our daughter was pregnant. Yesterday she had her first ultrasound and was able to find out whether she was having a boy or a girl. We learned that not only was she expecting a girl, but rather two girls. Each one has her own placenta, so they will not be identical twins.

I would like you to confirm something for me. Identical twins have the same DNA whereas non-identical twins have different DNA, is that correct?

[Réal Ménard, Bloc, Hochelaga, QC]

I am an identical twin, but I do not have a criminal record.

[Dr. Ronald M. Fourney]

Yes, there are two types of twins. Fraternal twins, which is what you described, would just be like having a brother and a sister born at different times. They will have similarities to the parents, but they're quite distinct and different.

On the other hand, there are identical twins, of which we have, I believe, 72 pairs right now. It's in the annual report in the national data bank. One of the safeguards that we employ here is that the fingerprints are taken at the same time as the samples collected, even though the data bank doesn't know the individual by name or identity. The fingerprint is associated through the criminal history files and acts as a safeguard.

As a scientist myself saying that no two people in the world have the same DNA profile, and then immediately finding out that we have a number of these individuals in the national data bank, you can imagine that can be a bit disconcerting. Fortunately, fingerprints are able to distinguish between identical twins, and that's actually a quality assurance that we've built into the process right at the beginning.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, Mr. Ménard.

Those of us who watch CSI would have already known this information.

Dr. Fourney, did you have any comments? I did not give you an opportunity to comment on the independence of the DNA data bank. Do you have any view on that?

[Dr. Ronald M. Fourney]

I'm a member of the RCMP, so I'm caught there, I guess.

[The Chair, Conservative, Garry Breitkreuz]

That's why I asked you.

[Dr. Ronald M. Fourney]

We truly are a national service, a component of the RCMP that delivers service throughout Canada, not just with the RCMP members but through all our laboratories as well as other federal requirements as necessary.

Although the paycheque comes from one source, I would think that the safeguards and certainly the procedures we use and how we serve have a certain amount of independence. You're right. There's always that optic associated with this.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Harris, please, for seven minutes.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chairman.

Both Justice Cory and Mr. Bird indicated the concern that the statute did not permit the use of familial relationships. I'm wondering whether or not paragraph 6(1)(c) is adequate.

It allows information to be shared or communicated if the profile is, in the opinion of the commissioner, similar to the DNA profile that is already contained in the data bank. Information related to that can be released. When I saw that there in reading the act, it seemed to me that it might be broad enough to cover that. Somebody obviously has concluded that it's not, from both of your comments.

Would you care to reflect on that?

[David Bird]

The issue of a similar match is really to deal with cases where it can't be excluded on the first time through. In other words, I believe in the data bank there are 13 loci kept in their convicted offenders index. Sometimes they get crime scene profiles from police agencies, either in Canada or abroad, that use a different system, and they have nine or seven loci.

The problem there is that they match up to a certain point, and then they'll continue on. The data bank would then have several matches at what they call a moderate stringency, which says that these are close and there are these further matches--we match up to this point, but beyond this there are other DNA profile loci that we have, which could be those. They could give those profiles abroad and ask for further analysis to see whether or not it can be narrowed down to this list, so that they can further go back and get the identification information and determine whether they have a real match or not.

The whole purpose is to determine whether or not we have an exact match. Once you get to the point where it's scientifically proven that the person doesn't match, no other information can go ahead. If you get to the point where you have a degraded DNA sample from a crime scene that has limited DNA profiles, it's possible that it matches a number of convicted offender profiles, and the data bank can report up to that point that it has those matches. That's as far as it can go. But as soon as it's excluded, no other information can be given, even though it might be very apparent to the people doing the analysis that there are enough similarities in the DNA profiles that they have to conclude this is probably a relative of that person, which is familial searching. That familial searching report cannot be given. All they can do is report that they have a match or not, until they can get it down to a scientific certainty that there's enough loci in common to not exclude--in other words, if the DNA profiles in the data bank are largely the gold standard, but at the crime scene they're less than that, then up to a certain point you can say yes, we match to this point, but we match four, five, or six convicted offenders, because the completeness of the DNA profile from the crime scene isn't there. It allows them to do further research into narrowing down the possibility that the crime scene matches a convicted offender. If it doesn't, then that's excluded. But it could be in the process, as I said, of knowing that these different loci are close enough that the inheritance would suggest that the loci that are in common, but different, suggest a close relative.

[Jack Harris, NDP, St. John's East, NL]

I'm not certain about what I'm hearing, but am I right in saying that, for example, with my brother and me, you would determine that it's definitely not a match between the two samples, because we have different DNA and you have very good samples for both? You could say, as you just did, that my brother's profile and mine would be similar, but that doesn't qualify as being similar in the opinion of the commissioner under this particular section of the act.

[David Bird]

No, it doesn't.

[Greg Yost]

I would just add that what paragraph 6(1)(d) talks about cannot be excluded. That's where the difference comes. The data bank advisory committee, as you've heard, has some international experts on this.

My understanding--and every time I talk about the science, Dr. Fourney winces--is that each loci has two, so there are 26, and when you get around 18 or 20, the geneticists will tell you those are going to be brothers or sisters, that sort of thing. But if one or two of them are off, they're simply not allowed because that person has been excluded. So they could not tell the police they're probably looking for the brother of Joe Blow.

[David Bird]

If I could add, it's a specific offence under subsection 6(7) of the DNA Identification Act to report information not permitted by the section itself. All the information you can report is set out in 6(1), and we have to advise the police that they cannot be given this information or else it would be an offence. That's usually not very well received by police forces.

[Jack Harris, NDP, St. John's East, NL]

I understand that, but my concern was the interpretation of subsection 6(1) in terms of what “similar” means. Apparently it means something very specific, having to do with the number of matches in a particular sample.

Thank you.

Mr. Bird, I believe you were talking about the concern regarding restrictions on international use of the data banks. You seem to be complaining that the restrictions are too serious, at least in your opinion. Am I overinterpreting your remarks in section 3, where you are maybe not complaining but are talking about how you would expect a direct electronic system to compare DNA profiles between databases to work?

Your last sentence there reads that at the present time there are no blanket authorizations from any police force to be able to upload all crime scene DNA samples internationally.

Is that a complaint of yours? Do you think we should be throwing all these DNA samples that we've collected into the international milieu and allow police forces or other countries to use it, or misuse it, despite potential agreements to the contrary?

[The Chair, Conservative, Garry Breitkreuz]

Mr. Harris, that will have to be your final question.

Go ahead, Mr. Bird.

[David Bird]

Thank you.

My concern here is that in order to efficiently exchange DNA profiles, it should be done electronically on a largely bulk basis of the unsolved crime scene profiles that the data bank has. Otherwise there isn't any personal information attached to this. It's evidence that's been left at a crime scene that may have come from the prime suspect. It can't be sent abroad routinely in a bulk way to see whether it might fortuitously match a convicted offender or other crime scene in a foreign jurisdiction.

Obviously we would expect closer transfers of DNA suspects from closer countries, such as the U.S., but it's possible that given the rapid mobility of certain offenders, they may be European or from somewhere else in the world, and that by exchanging our DNA profiles routinely from our crime scene, which is anonymous and for which we have no identifying information largely, we could solve those crimes.

It's particularly significant when you have international connections. You are dealing with an international criminal in some form who is committing crimes here and abroad, and if they link together, you may be able to disrupt or prevent a serial offence from happening further somewhere in the world, whether that's terrorism or sexual predators, or just international organized crime.

I think the G-8 countries have recognized that this cooperation would be very useful. There are a lot of technical hurdles, because of the different systems involved, to make this work, but as a matter of routine, we would have to get a specific request under the current legislation from the police force involved to send their crime scene profiles abroad. That is logistically difficult for us, because we can't simply send our crime scene index and say, “Would you search this routinely abroad?” We would have to go through and find out which of those samples we have a specific request for and international search for, which is a logistical problem.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Yost, did you have a brief comment? No.

Mr. Harris, your time is up.

[Jack Harris, NDP, St. John's East, NL]

I realize that, but you don't make the distinction in your remarks between the crime scene investigation and the whole data bank itself, because that's a different issue entirely.

[David Bird]

It would only be allowed by the crime scene, the DNA profiles.

[Greg Yost]

Mr. Chair, I did have a brief comment.