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.