Public Safety Committee on Feb. 24th, 2009

[The Chair, Conservative, Garry Breitkreuz]

Oh, you did have one. Okay.

[Greg Yost]

It's just to keep drawing the attention to what we tried to do in Bill C-13 and Bill C-18, the reference to samples being sent abroad. Mr. Bird refers to profiles. We're talking here about the computers comparing numbers. We're not talking about the bodily substances we have gathered here being shipped to another country for them to do that. That would not be part of it. It's just the computer numbers, the profiles.

[The Chair, Conservative, Garry Breitkreuz]

I appreciate that clarification. Thank you.

Mr. Norlock, please.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

Thank you, gentlemen, for being here today to talk about this very important subject. It's way far overdue. We should have been dealing with this several years ago.

Listen, one of the things I do, especially when we have witnesses, is to think about the average Canadian who's sitting at home, who may want to look at the committee work, who may be listening or watching or reading what has gone on here, who is trying to understand. Most people don't look at the complexities. They look at what they've heard and seen on television. And I'm not referring to CSI, I'm referring to the news reports.

I am getting to a question here.

People just want things to get better. They expect the police, the scientists, and the forensic laboratories to work toward catching the bad people and protecting the innocent victims--in other words, protecting society as a whole. Sometimes the complexity of our legal lobby, as I call it, or the legal machinery, tends to almost turn the public against the very thing they should have faith in.

Often I and my friend here, with whom I share caucus, will discuss the separation between the police and forensic labs, etc. Then I hear the suggestion that the police somehow taint things because of their association with them, that the police cannot be close to the scientists, that the police cannot be close to judges and lawyers, that they bring a.... I know there needs to be a separation, but we need to have some faith that the right men and women are there.

This leads me to the next point--namely, not being able to use some of the samples or not being able to use information that is gleaned from other countries. Criminals and crime don't know boundaries and don't know borders. I can't speak about a specific case--I believe it's still on the go--but we have people who abuse children internationally. Because of the great abilities of our system, whether it be fingerprints or DNA or being able to descramble photographs, we can identify criminals. My alarm bells go off when I hear that this country does not accept or cannot assist investigators in identifying the perpetrators of horrific crimes against our children--or against any person in society, also including terrorism.

I don't know who should answer this, Mr. Bird or Mr. Fournier. I think you've talked about it, but in simple terms, why can't we just use information from external forces and let our police know, or the police in other jurisdictions know, so that they can solve crimes and protect people?

[David Bird]

Perhaps I could make a first stab at that.

I think this comes back to the original concerns that Parliament had about DNA in the hands of the police. Going back to the very beginning of the DNA debates back in 1998, and before that, there was certainly a lot of debate around how much information the police would be allowed to have concerning DNA taken from citizens--how it was kept, how it was transmitted. The end result was a very restrictive regime about the keeping, using, and transmitting of information that the police had from DNA that is kept in a database nationally.

I believe that's why we're seeing restrictions imposed by the legislation on what can be reported abroad and shared with respect to DNA specifically.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Would you feel brave enough, or would the group of you feel brave enough, to make some suggestions with regard to loosening those restrictions, and maybe share them with our researchers so that we could draft appropriate legislation or amend the current legislation to permit the common-sense use of this information?

Mr. Yost.

[Greg Yost]

That rather touches policy.

The simplest way, in my view, would be to amend the DNA Identification Act so that the commissioner—or an independent body, if we end up with one—would be allowed to transmit any information they have that may be of assistance to a law enforcement investigation. Let them work out whether this moderate match or kinship analysis is going to be worthwhile in that investigation. Rather than have these blankets of “it's in” or “it's out”, it would be simpler to do it that way. Obviously, safeguards can be put in—requirements for annual reporting as to what's been done, etc.—so that Canadians will know that nothing's going on.

I was at a conference in the United States at which some of these issues were being discussed. The scientists down there were quite incensed by suggestions that they would be manipulating the DNA. They run it through there: “This is the profile that we derive and this is how we did it.” The suggestion that they could change that in some way in order to assist the police, when it has to be rechecked and submitted to the defence so that they can get their own experts to check their analysis, if they wish.... They were quite incensed at the suggestion that they could twist things for the police.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

I suppose I'm going to go to Judge Cory with this question. Do you think it would assist those in the legal community, especially adjudicators, if there were a national separation, as there is in Ontario and Quebec, of forensic labs, making them a stand-alone agency? It goes to the question of sharing information internationally. In your opinion, would that somehow relieve the worry that somehow, in some way, the association with the police taints or influences the work of the folks in the forensic field?

[Peter Cory]

The answer is yes. It's something that doesn't have to be done quickly or overnight, but yes, the appearance of independence is important to everybody involved in the judicial process. Somewhere down the line, it's something that has to be considered and that I think should be done.

With regard to amendment to the act, why shouldn't something as simple as specifically giving permission, where there is not a match but every likelihood that it's a sibling or fraternal...be disclosed, so that there can be further investigation? It's a relatively small amendment that might prove to be of great assistance to the investigative forces, without in any way jeopardizing privacy or anything else of concern.

[D/Commr Richard Bergman]

Can I comment on that?

My background is 35 years in the RCMP, and I was a forensic scientist. Ultimately, I became a deputy in charge of the National Police Services, under which the data bank falls. Within that service, there is the national fingerprint repository, the criminal records repository, the DNA data bank, the firearms registry.... Several federal registries fall within that particular area of the RCMP, and they serve all Canadian police forces across Canada.

While I was in the laboratories, we took great pride in the fact that we felt we were independent in some ways from the RCMP, even though we were in the RCMP.

If the data bank were to be moved out, then why not the fingerprint repository and the other repositories that serve Canadian police forces?

[The Chair, Conservative, Garry Breitkreuz]

That will be final.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

The thrust of the question was about hiving off the forensic work, similar to the way it has been done in the province of Ontario and, I suspect, the province of Quebec, making it a stand-alone agency, which can be done gradually. I don't think it would be a huge expense.

I see Mr. Fourney wanted to comment.

[Dr. Ronald M. Fourney]

I was just going to make some observations. You asked what the average person on the street thinks about how we could improve certain components. For me, I'm kind of a common-sense individual. Even though we're surrounded by high technology, the reality is this: what do we do with it, and where should we go with it?

The legislation is the rule book. Of course, we develop the science to abide by the rules. I would like to suggest a couple of things that are interesting to me and puzzling at the same time, having been in this program for over 20 years--from the beginning--developing DNA.

A very simple one, for instance, as was mentioned by my colleagues here, is not being able to include a victim's sample in the crime scene index. In reality, there are a lot of privacy and security issues to be concerned about. Certainly, if the person were living, there would be the issue of getting proper consent. Once again, it would essentially be another sample that's sequestered and used in some manner we could abide by within the data bank. We can abide by those rules, but the rules are just not there.

I'll give you an example. We've had instances when a torso--a headless, armless, legless individual--has been found somewhere. It is obviously a victim, but at the same time, the blood that comes from that individual goes back to another crime scene, so we're enabling a link. We can't put that in the crime scene index and search it. That's an incapacity on which we should be going forward.

The comment was made with regard to evidence left at the scene of the crime that is transferred. That's the basics of forensics. It's called Locard's principle: you can't go into a room and come out without leaving a trace.

I think the case they were talking about was a series of sexual assaults. The sweater of the first victim was pulled over the head, the victim was sexually assaulted, and that sweater was transferred. The perpetrator took it to several crime scenes, and at the last crime scene the sweater was lost. The key piece of evidence there was the hair on the sweater that did not belong to the last victim and did not belong to the perpetrator. It belonged to another victim somewhere else. It took a lot of experience and investigative skill to put it all together. If that sample had been allowed to go into the crime scene index, you would have had your answer right away.

In some ways, I respect the fact that we're walking before we're running. I was before the Senate committee when the green light was given for royal assent to create a national data bank. I would remind the members here that it took 10 years to get to that point.

I think we've made a lot of headway with regard to how we use this technology, certainly in terms of privacy and security. I hope this committee considers where we should be taking this. We've taken it for a test drive. Now we can do far more.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

[Dr. Ronald M. Fourney]

Having been involved with things like Swissair and the identification of those victims, we know the responsibility involved with familial searching and kinship analysis, but there are also ways to deal with that.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll go to Mr. Oliphant, please.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you, Mr. Chair.

I have three questions, if I have time to do this. The first is on judicial discretion, the second is on expansion of the dragnet, and the third is on error rates.

I would always want to give judges more discretion rather than less. So I was a little surprised that Justice Cory was less willing to do that. Remarks made at a judges' conference—

[Peter Cory]

It's just as well that I retired.

[Rob Oliphant, Liberal, Don Valley West, ON]

--by Mr. Bergman, I believe, and Mr. Davidson, from your committee, and I believe the justices as well, scolded judges, really, for not having used their discretion more on secondary offences.

We've also seen an increase in the number of samples taken since then. I'm wondering whether your scolding worked, whether we needed to take away the judicial discretion, and whether it's working. Is there any sense of that?

The judges felt scolded. I'm not sure that you scolded them.

[D/Commr Richard Bergman]

We didn't intend to scold them. At the time, I think it was a matter of trying to provide more information to the judicial community, and we were invited to do so.

Would you like to answer the question on discretion?

[Peter Cory]

Yes. Some things I cannot comprehend. If you take the original designated offences, very serious crimes, there should be an automatic 100% filing of the sample on the conviction of the individual, and there isn't. I don't know how to explain that. It may be a working of judicial independence, I don't know, but that sort of thing is worrisome. That's why if there were to be something done that would be helpful, it would say that once there is a conviction there would be an automatic taking in those offences that are referred to, and that it would be done probably at the penitentiary. It shouldn't rest in the courtroom, or with the judge or the crown to make sure that he or she requested that the sample be taken. It should be something that's purely automatic.

Justification, if that should be needed, is other independent democratic countries that follow the system, certainly Britain, France, Germany, and the European community, and most of the states in the U.S. It's something that could improve, because the magic is the more samples within the data bank, the more hits that are obtained, the more crimes solved.

[Greg Yost]

With respect to judicial discretion, I've never fully understood why we are getting so few orders in, not just in primaries but particularly in secondaries. In 2001, in a case called Hendry, the Ontario court of appeal concluded—they were looking at four appeals where orders weren't made:

On balance I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s.487.051(1)(b)....

--which was the secondary designated offences--

This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations.

When that decision came out, I was expecting a flood of decisions to come in, and yet we're getting 15%, 17% of secondary designated offences. I don't know if the crowns aren't appealing or the judges are turning it down, but with this judgment I was expecting we were going to get about 100% of them, but we aren't.

[Rob Oliphant, Liberal, Don Valley West, ON]

This would be moot if Toronto's police chief, Mr. Blair, has been advocating that we expand the dragnet to include all those at the point of being charged with a crime. You've alluded to that. It's similar to Great Britain. I'm fairly quickly wondering where you stand on that as people who are experts on this question.

[Greg Yost]

I'll take the first shot at it. I referred to the fact that this paper we've distributed has been changed frequently, and there's a reference to a Marper case in there. The United Kingdom's House of Lords unanimously upheld their system of “take it from everybody for just about anything and keep it forever”, and they did it on the grounds that there were a lot of people who were picked up who were found guilty of very serious crimes in due course, and they wouldn't have been found because they weren't charged, etc.

That went to the European Court of Justice last December. There is now in the paper that they struck that down. They felt that taking it from people as young as 10, having the police decide whether you can come out as opposed to a judicial process, and taking it for crimes that you can't even go.... Recordable offences cover a remarkable range of offences. There's a regulation that I have at the office. Besides everything that you can be sentenced for, which would be our summary convictions as well as indictables, it also includes offences like racial chanting at a football game—that's my favourite example of what it covers. So they said that was just beyond all the limits. Even though other countries in Europe do take it from some people on arrest, they don't take it for every offence and they don't take it from young offenders, etc. There's a margin of manoeuvre that they talk about, but the British system had gone too far.

So I think with proper safeguards we could—particularly as we already have, in my opinion, the finest protections for privacy in the world for this information—design something that's appropriate to take it there. It has enormous advantages for the police. They have the person right there; they can do it right then and there.

[Peter Cory]

A lot of the wording is very similar to Justice Dickson's in some of the early cases with regard to our charter and with regard to search warrants. When I looked at the decision of the European Court of Human Rights from Stavros, it's a very good, thorough decision and it represents or reflects some of our early charter decisions. And if there was an independent type of entity that could review what was being done, that might have been a solution. But it's very clear, and it's fascinating to compare that to Justice Dickson's reasons with regard to search warrants.