Public Safety Committee on Feb. 26th, 2009

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

But on your comments where there's no legislation for exoneration--and I accept that to be true--this is not really a data bank question, this is more a criminal defence question. If I am a suspect in a serious offence and I obviously believe that I'm innocent, can I not submit to DNA testing--and obviously having my sample in the data bank would be of no use to my defence--for comparison to anything that might be collected at the crime scene? Now, do I have to hire my own experts as a defence to do that?

[Vincenzo Rondinelli]

First of all, I don't know if I'd ever advise a client to do this that early in the investigation. Leaving that aside, let's go down the hypothetical road that you do get to that point that, yes, you probably would get your own independent expert as well.

The CFS in Toronto is open to both defence and crowns, and they do a very good job of being independent in all of that. But generally speaking, for any sort of DNA testing that I've been involved in in our practice, the bill's been footed by the client.

[The Chair, Conservative, Garry Breitkreuz]

Your time is up, I'm sorry.

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

Thank you, Mr. Chairman.

Thank you for those answers.

[Constable Derek Egan]

If I may, Mr. Chairman, earlier I responded to Mr. Rathgeber's question with an incorrect answer. Perhaps I could correct that.

With respect to CPIC, I said that to the best of my belief it wasn't flagged. My belief was incorrect. It is flagged on CPIC for the particular purpose of allowing for endorsements.

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

Yes, that was my understanding, and I thank you for that correction.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much. That's helpful.

We're going to go over to the Bloc Québécois, and then to Mr. McColeman. That's probably going to take us just about to the end.

Mr. Vincent.

[Robert Vincent, Bloc, Shefford, QC]

Thank you.

I thank you for coming here today.

While on the one hand DNA tests are important, on the other hand they create an opportunity for litigation. Let me give you two examples.

Let us say that we do DNA tests and that we have 5,000, 10,000, 100,000 or even one million names in the data bank. Could someone wishing to accuse an innocent party use this bank for this purpose? Suppose that I decide tomorrow to take a hair sample from you and drop it on a crime scene where fingerprints would not be available. The only evidence we would have is that hair sample. With this data bank, we prove beyond any reasonable doubt that this hair sample belongs to someone arrested for vagrancy a long time ago. Twenty-five years later, he finds himself implicated in a murder case in which he had no involvement.

Might this not create an opportunity for criminals who would like to use this type of evidence? Might the police also use this to get rid of somebody they would prefer to see in jail?

I would like to know what you think about this, Mr. Rondinelli.

[Vincenzo Rondinelli]

Well, it sounds like a TV show episode, what you're mentioning, but in reality it has happened.

As we've heard, criminals are very smart. They're always trying to stay one step ahead of the law. There have been cases in the U.S. where, for instance, some criminal will provide his DNA sample in some form and will give it to someone to leave at a crime scene. The only way they found out in the U.S. that...because it did match in the data bank. I can't remember what state it was; I'm thinking it was Illinois, but I could be wrong. At any rate, it did match. But when they went back to arrest the person, they realized that the guy had been in jail for the last two or three years. He couldn't have committed the crime.

It turns out that this guy had been selling his DNA samples in little ketchup packets and getting them through the jail for $50 each or something like that. Then at the crime scene, they could sprinkle semen or whatever else he was putting in these ketchup packages.

So it does happen, and that's why DNA by itself shouldn't be the only thing that investigations and convictions rely on. It's only one piece of evidence.

Let's look at exonerating, at being able to exonerate suspects, as they claim. Let's say they run the sample that they find at a party where someone was murdered. It doesn't match up with my DNA in the criminal offenders index. But they have ten other people, including my parents, who saw me at the party and said, “You know what? We saw him stab him.”

Are they not going to follow me any more because they didn't get a hit from the DNA data bank? What does exoneration mean, and how do they use it? Again, statistics without further use of how.... I can't see how any police would give up the trail in that situation just because DNA exonerated me through the DNA data bank.

[Robert Vincent, Bloc, Shefford, QC]

It is easier to get a conviction on this basis than with any other type of proof. Fingerprints may place somebody at the scene of the crime, but this may not be sufficient proof in itself. If there are fingerprints on a glass, there must be fingerprints elsewhere in the room. On the other hand, if there are no fingerprints, a hair sample might be found. This would allow police just as easily to continue with the investigation.

This seems to be again problematical. The situation is not clear. The situation is not clear enough to allow us to fully approve obtaining DNA samples from people.

I concur with the Privacy Commission's position in favour of the status quo, because there is yet another issue which bothers me. We don't know to whom we could confer this mandate to be the guardian of this DNA bank. Allow me to draw a comparison between the Privacy Commission and the CRTC. We can ask to have our name on a no-call list. Yet, these lists have been sold. The responsibility of managing this list has been given to government employees but they did not manage to be good guardians of that list. In whom could we place our trust? To whom could we confer this responsibility and not fear that they might be bought off to sell DNA data?

I would like to have the thoughts of Ms. Bernier as well as Ms. Campbell on that subject.

[Vincenzo Rondinelli]

We share the same position as the Privacy Commissioner in terms of not expanding it further. And your example of the “do not call” list is good.

But again, we are seeing this in the U.S. experience. Originally it was built as a criminal database, and then a state legislature said there's a lot of information there and why can't we start using it for medical research? There are some states that now have allowed that because there is a wealth of information there.

So again, we share the same concerns as the Privacy Commissioner on that.

[The Chair, Conservative, Garry Breitkreuz]

Very briefly.

[Lisa Campbell]

Yes. You referred to the situation in the U.S. DNA is collected and the information is shared for research and statistical purposes. As Mr. Rondinelli has just said, it is a very rich source of information. It is important to apply a very strict control considering the extent of the information contained in DNA. It should be noted that under a privacy legislation, the protection given to medical data banks is now more important than that given to criminal law data banks.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Mr. McColeman, please.

[Phil McColeman, Conservative, Brant, ON]

I'd like to direct my question to Mr. Egan and Mr. Rondinelli jointly. My question relates to the business case for the DNA data bank.

It seems to me, as a former businessman, that once the DNA match is made to a potential criminal, the investigative requirements would be greatly reduced for law enforcement. Some of these cases can be very complex. They can cost millions of dollars to investigate and go through court.

From a very simplistic point of view, I'm wondering whether you would agree with me, because when I asked the question of the last group of witnesses, that was never factored into the cost of this program. In other words, the cost savings were never factored in for a conviction that happened very quickly versus a lengthy investigation.

Do you have any comments regarding that, in terms of policing and investigation and court time and lawyers' costs? Is there a cost savings associated with the DNA data bank?

[Constable Derek Egan]

Yes, sir, there's no question about that. The complexity of investigations today brings about an enormous cost, particularly on those investigations where a suspect is not readily available. When you have a murder and there are no suspects, you are into a very long and difficult process in trying to identify suspects and focus the investigation. That means you are going off in many different directions. It costs a lot of resources, money, and time.

Certainly when you have crime scene data you can run through the data bank and it points at an individual, it's for the court to decide on the value of that evidence in the totality of the investigation. It certainly enables you to focus your investigation, and that focus will lead to considerable savings in time and money.

[Vincenzo Rondinelli]

Again, on proportionality, murder investigations are obviously costly, and there is great utility in that. But I come back to diminishing returns. What value added do you get by expanding it to dangerous drivers who cause bodily harm? Again, I'll look to the research done in the U.K., in terms of their diminishing returns. They found that the cost to get those extra 600,000 profiles into their database for that year--and they only ended up getting one in 800 convictions out of it--could have hired 60 more police officers, including training, salaries, and all of that.

If you asked the public whether they'd want a dangerous driver in the data bank, who you'll probably never see in the court system again, or a police officer at the high school where their children attend, I'm pretty sure I'd know the answer to that.

[Phil McColeman, Conservative, Brant, ON]

As a comment on that, it appears to me that the management of investigations and policing--police chiefs, police service boards, etc.--would be to reallocate certain budgetary amounts in the current system for doing this. In fact maybe at the end of the day, although it would be complex, if a proper business case could be made it would cost us very little.

But there's another point I want to make, and that is on a comment Justice Cory made when he was our witness. He said that through their study, in 26% of the cases in the United States the prime suspect has been eliminated.

How do you react to that, Mr. Rondinelli?

[Vincenzo Rondinelli]

I haven't seen the study, so I'm in a sort of vacuum from the standpoint of seeing exactly what eliminating the prime suspect means. I gave an example in which I said that even in a case where the database doesn't show a link, but where they have this other great evidence against me, that gap wouldn't eliminate me from the case.

I can say that because of the backlog in the U.S., there have also been cases in which they haven't been able to use the database because it still hadn't been uploaded. Many cases are coming out of that type, in which the person would have been caught many years ago, if that violent offender had been put into the database rather than opening it up and having to deal with all these other processes. You still have to balance it with what happens on the other end of things. I'm sure that statistically there are some people who get exonerated, but value added is what I come back to all the time—proportionality.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to thank our witnesses for the information they've given to us. It's very helpful. We appreciate the time you've taken to come here.

Committee members, we're going to suspend for two minutes and then we will go in camera to discuss future business.

[Proceedings continue in camera]