Public Safety Committee on Feb. 26th, 2009

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

If I go along with your thinking, we might be left with the impression that the police wouldn't use DNA information if they thought it was going to remove a person from their suspect list. Having worked in that for 30 years, I have never in those 30 years known a police officer--and it would be a criminal offence--not to use evidence that would exonerate the accused.

[Vincenzo Rondinelli]

Again I ask, how can the data bank be used for that right now? You get a crime scene index sample, or you get a crime scene sample, you upload it to Ottawa, and you don't know who's in the convicted offenders index unless it comes back as a match. You don't know I'm in there unless I come back as a match. So how is that going to...?

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

Well, if you're the charged person, it comes back. It's like fingerprints, the way I understand it.

[Vincenzo Rondinelli]

No, that's not how it would work.

Let's say that I am in the convicted offenders index, that I have been uploaded. There's also a crime scene sample that the police find. And they upload it to Ottawa in the crime scene index. Say it doesn't come back as a match. How do they know not to deal with me as a suspect any longer? They don't know I'm in the index.

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

But it shows that you're not the accused--

[Vincenzo Rondinelli]

How?

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

Because the evidence doesn't connect. There's no match.

[Vincenzo Rondinelli]

But they don't know I'm in the convicted offenders index.

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

I have to go back to our previous witnesses from the other day. I think the testimony we gleaned there doesn't match what you've said. It's something that I think the committee will have to look at a little more closely.

[Vincenzo Rondinelli]

Yes.

[The Chair, Conservative, Garry Breitkreuz]

That is really over. We can come back to you.

I want to thank Mr. Harris for sitting in for me. I will now give him an opportunity to go ahead with his round of questions.

Go ahead, sir.

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

Thank you, Mr. Chairman.

I thank you for your very interesting presentations.

I'm interested, of course, in the balance you talked about between the security need and the important invasion of privacy this represents.

Mr. Rondinelli talked to us about legislation creep. I don't want to be an alarmist, but there is a big brother scenario that looms over this type of thing. There is 7% of the U.K. population now in a data bank. Legislation creep could conceivably lead to somebody deciding in five or ten years' time that this information is very useful for other reasons.

Does that loom anywhere in your concerns from a privacy perspective? It sounds to me like you're taking a minimalist approach, with only as much invasion of privacy as is required by the functions we're talking about. Would you care to comment on that?

[Chantal Bernier]

That is really a principle of Canadian law. That is how our courts have stated the fair balance to be and that is how, for example, the Privacy Act is constructed: that the invasion of privacy may be justified. We know that for governance, policing, and security purposes, a certain gathering of information is essential. So it must be allowed, but it must be allowed strictly as necessary for the objective it serves. That is the limit that must be met.

In fact, I think the examples you've been given today by my colleague and by Mr. Rondinelli show that without this type of vigilance you could go way beyond what is actually necessary. Not only that, but you actually undermine your security measures. Anyone who works in the field of security will tell you that you can actually diminish security by increasing security measures. At some point, for example, you can have so many locks on your door that maybe nobody can get in and you think you're safe, but you're unsafe because you can't get out quickly.

Absolutely, our premise in principle is that we must constantly ascertain whether any new measure of invasion of privacy is justified by the objective it serves in the context of a free and democratic society.

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

Mr. Rondinelli, we've heard the suggestion, not just today, but also in our last meeting, that DNA samples are just another form of identification, although obviously we've heard contrary evidence from the Privacy Commissioner. The suggestion has been made that it would be more efficient and better if everybody who was arrested for an indictable offence were to have their DNA sample taken at the same time as fingerprinting.

I'm not sure if other members know, but I've practised criminal law, although not as extensively as Monsieur Ménard, and I'm also aware that when we talk about indictable offences at the time of the arrest they include offences that can be prosecuted by summary or indictment. So some offences that are almost always prosecuted as summary conviction would be considered indictable offences at the time of arrest for the purpose of the Identification of Criminals Act.

This isn't a legal quiz, but are there any examples of the kind of identification that has been used in certain circumstances improperly?

[Vincenzo Rondinelli]

Speaking about the upon-arrest issue, this isn't a new issue before Parliament. When this whole scheme was first developed, there was a big topic that was for obvious reasons on the table as well. And if you recall, there were opinions gathered from three former chief justices of provinces, one being Ontario, the other being Quebec, and I don't recall the third. But independently they did a legal analysis as to whether it would survive charter scrutiny, and they all came to the conclusion that it wouldn't. When we now look at the European Union's case where they come to the same conclusion, upon arrest is too wide a blanket thrown on proportionality. We come back to that. Justice Fish made clear in the R.C. case in 2005, which my friend mentioned, that DNA isn't like a fingerprint. Its information component has a much broader scope to it than a fingerprint.

So to expand it to the arrest scenario, and leave apart all the practical situations I put out there in terms of how much it's going to cost to do it and the resources, on the charter scrutiny, I don't think it would survive.

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

I have one final question.

It's been suggested, and I don't know how seriously, that the more people you have in your data bank, the more people can be exonerated by a no-match sample, so we haven't found the criminal but we've exonerated 156,000 people every time we run a match. Do you think that has any value as a statement of principle in terms of the value of a data bank of this nature?

Anybody care to comment on that?

[Vincenzo Rondinelli]

The flip side is the comment I made that the more you increase it, the greater the chances of false positives and false matches. And this isn't science fiction. You're seeing a new wave of cases in the States and challenges coming to databases. They want to get their independent research of the databases. For example, in Arizona they found that at nine loci, and I know we have 13 in ours, there were a number of false matches in that system. And on the basis of that, there have been a lot of challenges to different state databases where they want access to it to see what the chances are that there are false matches. So it does happen, and statistically it's always going to happen if you don't test the whole DNA strand, which isn't going to happen for many years.

[Lisa Campbell]

If I may also add to that, you've heard the adage “junk in, junk out”, and that's what I was talking about earlier, the critics of the U.S. system, where the 50 states all have different standards for which DNA is collected. They use different techniques and even different technology. So it's hard from a scientific perspective to say the results come from a standard approach. And the more data you amass, the more you run into this problem. If you compare countries, they're going to have different approaches. So it means that statistically your results start to become more and more unreliable.

[Constable Derek Egan]

I would also comment, please.

[The Chair, Conservative, Garry Breitkreuz]

By all means.

[Constable Derek Egan]

I would leave the issue on reliability of testing to scientists, but with respect to the exoneration, clearly exonerating people early in investigation is good for them, it's good for the system. There are examples coming up in the U.K. where people have been convicted on the basis of confessions and then exonerated as a consequence of the DNA testing. So it's very easy to imagine that, and certainly we've had our share of wrongful convictions in this country that, had DNA been present at the front end, the system would have been saved from all that distress, as well as the individuals involved.

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

I think my time is up, but I don't know how that works. We have seen DNA being used to exonerate people when their personal samples don't match that of the criminal. But if you're not in the DNA bank, the crime scene investigation data are going to be matched with yours. That should be available as a defence technique already, should it not?

[Constable Derek Egan]

Yes. What I'm saying is--

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

Without a massive data bank of arrested suspects.

[Constable Derek Egan]

I'm saying that the more samples in the bank, the earlier you can exonerate as that crime scene sample is run through the bank.