Evidence of meeting #5 for Public Safety and National Security in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was national.
A recording is available from Parliament.
10:45 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair. I'm going to be sharing my time with Mr. McColeman.
Picking up from where Mr. Oliphant asked some questions regarding judicial discretion, my first question is for Mr. Justice Cory.
In the Rodgers case, or elsewhere, is there precedent for a test as to what the judge ought to consider as to whether he's going to order a DNA sample?
10:45 a.m.
Member, National DNA Data Bank Advisory Committee
I thought Rodgers was helpful generally with regard to that.
10:45 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Can you explain the test that a judge ought to consider?
10:45 a.m.
Member, National DNA Data Bank Advisory Committee
Well, it's a little difficult. They said you might take into account the nature of the crime and the past criminal record of the individual as two factors that would have significance with regard to the order.
10:45 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Is the decision to grant or not to grant an order--and, Mr. Yost, maybe you can help me with this--something that is routinely appealed?
10:45 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
I'm not sure the word “routinely” is there. There have been appeals.
One of the things that's happened with Bill C-13 and Bill C-18 is that we've provided for a 90-day window, when people forget to make the application. It's my understanding, through an ad hoc federal-provincial group of prosecutors we consult with as to how it's going, that most provinces have developed standard procedures. They set a whole bunch of these down for hearing on one day and they generally get their orders.
There are a few cases, particularly involving young offenders, that are subject to appeal, but there are not very many with respect to adult offenders in recent years, because of cases like the one I quoted. The question is why the applications are not being made by the crown in the case of secondary designated offences.
It's my understanding as well that removing the discretion for the 16 offences in Bill C-13 and Bill C-18--the most serious offences--has led to a fairly significant increase in the number of those coming into the national DNA data bank. Those were all offences where discretion was extremely limited in the first place. The onus was essentially on the convicted offender to convince the court not to make the order. We were only getting about 70% or 75% of orders in those cases. That's gone up fairly sharply.
10:50 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Does the test differ for primary and secondary offences, in terms of judicial discretion?
February 24th, 2009 / 10:50 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
It does, very significantly.
Under the primary designated offences, the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interests and the protection of society and the proper administration of justice, whereas if you are in the secondaries, it says:
In deciding whether to make the order...the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person
There is much more to be considered, but the really significant difference is that the crown must apply for the secondary, whereas a judge shall make the order for primary “unless...”.
10:50 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you.
Mr. McColeman has a couple of questions.
10:50 a.m.
Conservative
Phil McColeman Conservative Brant, ON
I'd like to pick up on Mr. Ménard's train of thought concerning cost.
Does the number of $2.6 million that you gave us for 2006-07 factor in any amount for the offsetting cost of investigation that was not necessary because of positive identification?
Maybe it's my business sense that tells me to ask--the sense that if you extrapolate this, we would be less restrictive and could actually be saving money with this system.
10:50 a.m.
Director, National Services and Research, Royal Canadian Mounted Police
That's something we've always liked to try to do, because in the average murder investigation.... I've heard differing comments on it, but if there is such a thing as an average murder investigation, it could be millions of dollars.
I can tell you one instance that I know of, a murder in Toronto that remained unsolved for nine years. Significant investigation time was put forward, there were hundreds of samples taken and screened, and the individual who was the perpetrator came forward through the retroactive provision. And they had solved that case 20 minutes after the sample came into the national DNA data bank.
I have no idea what that particular murder case would have cost over nine years, but you can understand there would have been substantial savings.
10:50 a.m.
Conservative
Phil McColeman Conservative Brant, ON
From a managing point of view, then, it may work out, although it is very difficult to measure, to be the reallocation of resources rather than anything else—other than adding to budgetary requirements.
10:50 a.m.
Director, National Services and Research, Royal Canadian Mounted Police
It's always a double-edged sword.
Remember, as forensic scientists we provide investigative aids to the investigator, and if that individual is not out there doing the work that they do—and, I might add, it is a lot of hard work and it's fine work.... The issue of science and, for instance, the national data bank is no excuse for not doing absolutely good police work.
I would like to think they're in tandem. The more we provide investigation assistance to enable those samples to come in, in a timely manner and provide the information back to them, the more we can help focus an investigation and provide significant assistance.
For the committee, my understanding is that there is going to be a speaker to this effect, perhaps from the Canadian Association of Chiefs of Police, on Thursday, and I think that's a very good question to ask them.
10:50 a.m.
Conservative
10:50 a.m.
Counsel, Department of Justice
Mr. Chair, let me follow up with a comment on Mr. Rathgeber's question about the difficulties in getting secondary offences and about applications not being made for them.
In my conversations with some prosecutors, they've indicated to me informally that one of the problems prosecutors face in their jurisdiction is that judges are reluctant to issue secondary orders for DNA for convicted offenders and that as a result of that the prosecutors are discouraged from making these applications. They already don't want to upset the judge before them with respect to sentencing considerations they have and they are basically imposing a limitation on themselves from making the applications.
10:55 a.m.
Conservative
10:55 a.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
I suppose I could ask Mr. Justice Cory this question, but somebody else might also want to answer—perhaps Mr. Yost.
As I understand it, there are, roughly speaking, 32,000 samples in the machinery now. If we were to go to a broadly expanded system that looked at the time of arrest, as has been requested by many chiefs of police across the country, that could potentially expand the number to close to 200,000. Is that right?
10:55 a.m.
Counsel, Criminal Law Policy Section, Department of Justice
Those are very rough calculations, I would point out. In fact, they're based on the current designated offence list, and if we went to the same as on arrest, it would be all indictable offences. So the number would be higher, but we'd have a lot of people who were recidivists, etc.
It's a rough ballpark number. If Parliament wants us to go that way, I assure you that we have a lot of work to do to figure out the exact numbers.
10:55 a.m.
Liberal
Bob Rae Liberal Toronto Centre, ON
And the question would then be, Mr. Justice Cory, that you would recommend that we obviously take into account the Marper decision from the European Court of Human Rights in assessing what balance we would ask to be put in place to deal with such an expanded use of the registry.
Is that right?
10:55 a.m.
Member, National DNA Data Bank Advisory Committee
Yes, it would be very helpful.
10:55 a.m.
Conservative
The Chair Conservative Garry Breitkreuz
Thank you very much.
We'll have to wrap up here because there's another committee waiting to take this room.
I just want to give the committee a heads-up that we're going to spend the last 15 minutes of our next meeting on Thursday deciding the future business of the committee. There have been a couple of witnesses who are unable to come here. I'll just warn you that's what we're going to be doing.
Thank you very much to our witnesses. We appreciate the excellent input and information you've given us.
This meeting stands adjourned.