Public Safety Committee on Feb. 26th, 2009

[The Chair, Conservative, Garry Breitkreuz]

I think we have to move on here now.

Mr. Kania, please, for five minutes.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you.

I'm a strong supporter of the system for three major reasons: first, because it helps to exonerate persons; secondly, because it helps convict persons who are truly guilty; and thirdly, because I believe, at least until what I've been hearing now, that it's essentially foolproof. So I'm concerned when I hear the phraseology false positive, false matches. I'd like to know more about that in terms of what is actually occurring and what the science is, and if the reason for a false positive or a false match is due to any methods we can control because of the system or insufficient methods or storage or whatever it may be that can be corrected.

First, is the science foolproof, or is this something people should be worrying about, that they may be convicted as an innocent person because of this DNA system?

[Lisa Campbell]

Thank you for your question.

The false positives I was talking about related to familial searches. This is a practice that happens in the U.K., where searches will be run against a convicted offender index from a crime scene and they look for close matches. That's a less precise form of search, so that is more likely to turn up false positives, or conversely, false negatives. I was talking about that context specifically, not matching of samples.

The technology has much improved since it was first initiated, so it is scientifically much closer when you're talking about a precise match. So I was talking about familial searches, which we recommend against.

[Vincenzo Rondinelli]

It's a bit of a combination of both the science being not able to test the whole DNA strand, and that's why...because 99.9% of all our DNA is the same, it's only that 0.1% that differentiates us all. And on the strand they look at—and you've probably had this presented by other speakers in earlier days—loci, in terms of how many.

When the system first came out, they were looking at six, and they said, “It's impossible, you won't find another of six”, and then there was a false match in the U.K. on six. Then they went to nine, and they said, “With nine, you're not going to have any problems”. And again, the Arizona thing I mentioned, there are a lot of false matches in nine. Now they're saying the same about 10 and 11. I know at the last Promega Conference this past October, where DNA scientists all around the world get together, they said yes, they have seen false matches at 10 and 11. And that's why there are all these challenges of state databases now in the U.S., because they want to see what the chances are that 13 is going to have false matches.

So until the whole strand can be tested, and that's when it will be absolutely foolproof, there's always that chance. It's just like subway cars. We all have 20 cars, and if you're only testing four, there might be a chance unless you go to five. And that's why I say the bigger the database, the more chances of false matches.

[Lisa Campbell]

May I just add one additional point? The most reliable samples come directly from blood and other bodily fluids, but if DNA is collected from discarded facial tissues or postal stamps.... So it depends on where you've collected the DNA.

It also depends on the method of testing. DNA is currently the most precise biometric measurement possible, but because of the finely tuned nature of the testing there are also risks of error.

It is much more reliable now than it was when it started, but it depends on the testing method used. The most commonly used is short tandem repeat—you've probably heard this from other witnesses in the forensic science context— and it involves counting the number of repeating sequences in a given DNA sample. And then you do a statistical analysis of the probability of that showing up in the other sample that you've collected.

[Andrew Kania, Liberal, Brampton West, ON]

I am also a lawyer, but not a criminal lawyer. In criminal trials, do you have experts who are being called to say “No, that's incorrect. That's the wrong analysis and we're fighting this”, and on that basis, depending upon what the trier of fact finds, you could actually have innocent people convicted? Is that what's happening?

[Vincenzo Rondinelli]

In the U.S. there's a lot more movement in terms of calling experts on databases. I haven't seen it in Canada yet, but again, as more evidence comes out from the U.S., I'm sure those challenges will come.

DNA in a case really is fact-based. Depending on what the issue is, sometimes you don't have any issue with it being the link between the client and the DNA, but there's some other defence that comes into play. Because at the end of the day, there are very few for which you'll get a conviction just on DNA alone. I don't know many crowns who would go on just DNA alone.

[The Chair, Conservative, Garry Breitkreuz]

Thirty seconds.

[Andrew Kania, Liberal, Brampton West, ON]

With the expansion of the legislation and the additional categories and more samples, is this actually going to help or hurt with this problem of false positives?

[Vincenzo Rondinelli]

I think you know my view.

[Andrew Kania, Liberal, Brampton West, ON]

I'm looking for the science. And then, depending upon what the answer is, I'm looking for solutions for how you would fix this. We need a system like this, but we need it to be foolproof. I don't want to start hearing of people 20 years from now who are now being released from prison because they've been convicted and it was false. Because we all believe that this is accurate. People are relying upon this to be accurate.

[Vincenzo Rondinelli]

The British mistake, as it's called, and it's a good example, is where they had a match at six from the database and they went to arrest the individual—they were all ready to take him to trial—but when they got there he turned out to have Parkinson's disease, he's in a wheelchair, can't move more than ten feet, can't brush his own hair. And they think, well, obviously he couldn't have, because the commission of the offence would have been that he scaled two floors up to get into an apartment for a break and entry. So when they tested it past the six to nine, it excluded him.

Now the question that everyone poses is, what if he wasn't in a wheelchair? What if he didn't have Parkinson's disease, didn't have that alibi? He would have been toast.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Mr. Rathgeber, please.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to all the witnesses for your excellent and very helpful presentations.

Following up on an answer, Mr. Rondinelli, that you gave to my friend Mr. Norlock with respect to the police not having any idea or any access as to who is and is not in the data bank, my question is actually for Police Chief Egan. On the CPIC computer system, which is fairly sophisticated and accessible by all police forces and is often in patrol cars, if a suspect's name is run through CPIC and that individual is located in the data bank, is there not a flag or some sort of positive result that the person who is under suspicion is in fact in the data bank?

[Constable Derek Egan]

Not to the best of my understanding.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

My next question is also for you.

In your presentation you talked about the inclusion of the offences of stalking and dangerous driving as potential primary designated offences. I was wondering, specifically, of those offences, why you believe they ought to be so designated. The purpose of my question is that they're not the types of offences that necessarily leave traceable data at the crime scene.

[Constable Derek Egan]

Well, as the science, of course, improves, all offences leave traceable data. Nobody can enter an environment without leaving traceable data. To go back to one of the earlier questions, when the act first came out, the science was very much about getting those obvious bodily fluids that would occur in the cases of murder and sexual assaults. As the science and technology progress, the ability to obtain smaller amounts of data has improved to such a degree that the application of that science to identity, to all crimes, is seen to be a very good thing.

So the offences to which I referred--I believe it was trespassing by night and stalking--we see these as precursor offences. People who are arrested later for more serious offences, serial murders or sexual assaults, typically have started out stalking and trespassing by night. So there can be evidence left at a scene by someone trespassing by night--cigarette butts, handkerchiefs, and so on.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I might accept that, but why dangerous driving?

[Constable Derek Egan]

Well, dangerous driving is an offence, and of course one of the critical components is who was actually behind the wheel. DNA will provide evidence of who was actually driving the car, or it could provide evidence to that.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Right. But you're suggesting that people who are convicted of dangerous driving ought to be compelled to provide samples to the data bank. I'm wondering about what investigative purpose that provides in the future.

[Constable Derek Egan]

Well, having people in the data bank, of course, allows later on, as I say, the searching of the data bank.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Mr. Rondinelli, you talked about the lack of exoneration purposes for the data bank. We heard from retired Mr. Justice Cory earlier this week that 26% of prime suspects are in fact exonerated through DNA evidence. I'm assuming you've heard that or are familiar with that statistic.

[Vincenzo Rondinelli]

Well, statistics, I'm not sure what that would mean. On a practical level, as Mr. Harris mentioned, it really comes down to your client providing a sample and it is cleared from whatever was left at the crime scene. Just as other wrongful convictions have been cleared in this country, it hasn't been from the data bank. I'm still not clear in terms of how the data bank really leads to exonerations. As I mentioned, there's no access even provided to the innocence project. So if there happens to be some procedure in place where the police are able to cite that they're exonerating suspects, it would not make sense that the innocence project wouldn't then have the same ability.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I don't mean to speak for Mr. Justice Cory, but I think what he meant was that DNA access to the data bank actually resulted in another individual being charged and convicted, and therefore having it ultimately exonerated the original crime suspect. That's what I think he meant.

[Vincenzo Rondinelli]

Yes, and I can't argue with that. I can see how that happens.