JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, February 18, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're back, and it's still Bill C-3, an act respecting DNA identification. Also, we're looking at review of the provisions and operation of Bill C-104, from the first session of the last Parliament, with respect to forensic DNA testing.

We have from the Ministry of the Attorney General of Ontario: Renee Pomerance, who is counsel with the crown law office, criminal; and Dr. James Young, assistant deputy minister, public safety division.

Thank you for coming. We have your brief, so we're looking forward to hearing from you, and following that, we'll have some questions.

Dr. James Young (Assistant Deputy Minister, Public Safety Division, Ministry of the Solicitor General and Correctional Services of Ontario): Thank you. I'll begin, if I may, with some very brief remarks, and Ms. Pomerance will follow with some of the legal points that we wish to stress to the committee.

I appear on behalf of the Ministry of the Solicitor General and Correctional Services, in two roles. I am assistant deputy minister, which gives me the operating responsibility for the Centre of Forensic Sciences, so the DNA lab is part of what I do on a daily basis. As well, I'm the chief coroner of the province of Ontario and therefore become involved in investigations and inquests in many of these same areas.

We appear today to endorse the bill and to express appreciation on behalf of the Province of Ontario for the bill. We think it's an excellent piece of legislation, and the province strongly supports it. Unfortunately, we've had far too much experience in the type of crime that this bill is trying to address.

I'm sure the members of the committee are aware that we've had many high-profile cases in the province. Included are some of these cases that have been prosecuted, such as the deaths of Nina De Villiers, and Karen Marquis in New Brunswick, at the hands of Jonathon Yeo, which were inquested in Ontario and led to a look at this type of dangerous offender, and also a royal commission by Justice Archie Campbell into Mr. Bernardo's carryings-on.

From that, we have developed a comprehensive plan and approach to the kinds of situations dealt with in this bill, and that includes, mandated by class, reporting by police in Ontario, new case management systems for police to investigate serious crime in Ontario, and also a major expansion of our DNA lab. That expansion has met with great success in a number of both clearing of suspects and convictions in courts.

Part of that strategy, then, in Ontario includes the DNA bank, and we think it's an important part of solving the cases and dealing with the cases. For this reason, we support it strongly. We support earlier DNA legislation and in fact look forward to a future act that will include accreditation of labs as well.

We believe this act will help solve some of our current and future cases. We believe, as has been the experience in other countries, it will help us solve many old cases as well, and we believe it may have a deterrent effect on criminals in future.

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One of the critical things for us is that we would like to see this legislation pass as quickly as possible and be as strong as possible. Knowing the lead-up time for anything in regard to the laboratory field, we recognize that passing it tomorrow will probably mean a lead time of a year and a half to two years. For that reason, we think it's imperative that the act move ahead as quickly as possible.

One final area I'd like to mention is the area of retention of samples. We understand that there can be and have been voiced some privacy concerns, but we strongly believe the act protects privacy concerns and has in place protections to ensure that the information is correctly used. We think many of the privacy concerns are more theoretical than actual, and I say that as a medical doctor and as a scientist. I believe that in fact there are fewer risks in reality than what many people talk about.

Finally, I think the effect of weighing the privacy concerns and not retaining samples must be weighed against the strong scientific need for retention of samples. For this reason, Ontario very strongly believes in retention.

We think over the last number of years DNA evidence has enabled the criminal justice system to become more reliable, more effective, and ultimately more just. We believe through initiative such as Bill C-3 and Bill C-104 forensic DNA technology will continue to enhance the administration of justice in Canada.

I'd like to ask Ms. Pomerance, then, to comment on our legal issues.

Ms. Renee Pomerance (Counsel, Crown Law Office—Criminal, Ministry of the Attorney General of Ontario): Thank you, Dr. Young.

Like Dr. Young, I'm very grateful to have the opportunity to address this committee on the vitally important issues arising out of Bill C-3 and Bill C-104. I have filed a brief that sets out our positions on these issues in some detail, and I propose to hit some of the highlights in my comments today.

Dealing first with Bill C-3, as Dr. Young has indicated, Ontario strongly supports this initiative. We believe it will serve a compelling public interest, that it will greatly enhance the ability of the police to link crimes and apprehend violent serial offenders.

We support many features of this bill. We support sample collection post-conviction. Given the Canadian case law dealing with privacy interests in section 8 of the charter, we believe sample collection at the time of arrest, without warrant, would raise serious constitutional difficulties.

As Dr. Young has indicated, we also support section 10 of the bill, which provides for retention of biological samples. We believe this is a crucial component of the scheme necessary to ensure that the bank remains a useful and effective tool.

The science of DNA testing has advanced rapidly over the last number of years. Samples that could not be tested at all in the past because they were too small or too degraded can now be tested and can yield compelling evidence of identity. One thing is certain, and that is that this science will continue to evolve. The new technologies may be very different. We may not be able to compare and cross-match results obtained under the new and old technologies. This will have very dramatic implications for a data bank.

If samples are retained, there is the prospect of retesting when technological change occurs. If samples have not been retained, we face two undesirable options: On the one hand, if we update the bank but cannot retest samples, we risk losing the value of all the old data, perhaps collected over the course of years. On the other hand, if we retain the old technology in order to preserve the data, we are left with a data bank that may be scientifically obsolete and that cannot communicate with other systems around the globe.

We believe the retention of samples is the means by which to avoid this dilemma. Of course, there are privacy issues that arise. As Dr. Young has indicated, Bill C-3 does place strict controls on access to retained substances. Among other things, it provides that unauthorized use will constitute a criminal offence, and we believe these safeguards will prevent abuses, while permitting the bank to keep step with technological change.

There are two areas where we would ask you to consider amendment to Bill C-3.

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The first issue concerns primary designated offences. We would submit that inclusion in the data bank ought to be mandatory, not discretionary, for those convicted of primary designated offences.

As you are aware, the bill currently provides that a trial judge may decline to make a date bank order where a person convicted of a primary designated offence can establish that the impact on his or her privacy would be grossly disproportionate to societal interests. We would ask you to consider removing this discretion. We believe it is not constitutionally required. Of course there must be a balancing of interests, but we believe by the postponing of sample collection until after conviction the balance is already built into the scheme.

We are concerned here with persons who are convicted of the most serious offences known to our law: the sexual offences, the homicides, the serious assaults. We believe it is open to Parliament to determine in advance that when someone is convicted of one of those serious offences, that fact alone is sufficient justification for concluding that they should be in the bank, that societal interests are paramount, and that there is no grossly disproportionate invasion of privacy.

We are concerned that the current discretion will operate to the great detriment of the data bank. It will inject uncertainty into the scheme. The language of the test, we would respectfully suggest, is imprecise. It is capable of varying interpretations. We know from other areas of the law that different judges will, in the exercise of their discretion, apply this test in different ways. While it might be contemplated that the test will be satisfied only in the rarest of cases, it is by no means certain that it will be applied in such a restrictive fashion. The bank will be only as good as the data it contains. We fear this discretion will lead to the omission of important data necessary to ensure the protection of the public.

The other area I wish to comment on concerns the application of the data bank bill to persons convicted before the proposed act comes into force. At present it is contemplated that two categories of offenders will be subject to the scheme: dangerous offenders and certain multiple sex offenders.

We accept that this issue calls for the exercise of restraint and that there should be limits on what some would call the retrospective reach of this bill, but we believe at least one very important category of offender is missing. Certain persons convicted of murder and manslaughter offences should also be included, not only because these are serious offences but because these persons will furnish a vital source of data.

As Dr. Young has already noted, the bank will not only permit us to solve crimes of the future; it will permit police to solve violent crimes of the distant past. DNA is often the key to solving these old cases. Just last spring in Ontario, DNA analysis of a discarded cigarette butt led to the conviction of William Brett Hensen for a murder committed close to 12 years earlier. It's reasonable to believe there are persons who are serving sentences for murder or manslaughter and who have committed other violent crimes for which they have not been apprehended.

How should the category be defined? I understand there has been some discussion of restricting the category to those convicted of multiple homicides. We suggest this category may be too restrictive. We would offer two alternative formulations. We suggest you may wish to consider persons convicted of murder and manslaughter who are serving a term of incarceration in the penitentiary at the time the proposed act comes into force. Alternatively, if you feel that category is too broad, we propose including persons convicted of murder or manslaughter and at least one other primary designated offence.

That concludes my comments on Bill C-3. I would like, if I may, to comment briefly on the Bill C-104 provisions.

Before Bill C-104 was passed there was no clear mechanism by which the police could obtain DNA from suspects in criminal cases. This bill was very important. It clarified the process. Police are now authorized to obtain DNA in appropriate cases. There is a model of prior judicial authorization and many other safeguards to protect individual rights.

On the whole these provisions have worked very well. We can report that approximately 125 to 150 DNA warrants have been obtained and executed in the province of Ontario since the legislation was enacted. However, we would ask you to consider three points concerning the practical operation of the bill.

The first concerns the list of designated offences in section 487.04, the offences for which a DNA warrant can be obtained. We would recommend this list be expanded to include certain other offences that have an element of actual violence, potential violence or violent intent. We have listed a number of such offences in our brief, including firearms offences, criminal harassment, infanticide and extortion, to name a few.

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The second point concerns section 487.05, which governs issuance of the DNA warrant. I'd like to raise a point that I believe was canvassed by Mr. Jack Walsh when he attended before the committee last week. There is a troubling ambiguity lurking in section 487.05.

Several cases in Ontario and other provinces have involved sexual offences leading to the impregnation of the complainant. In some instances the victim has obtained a therapeutic abortion and the fetal tissue has been seized for DNA comparison. In other cases, the complainant has carried the child to term and given birth, and the sample has been taken from the child. It is not entirely clear on the face of the provision whether a DNA warrant can be obtained in these circumstances. Different judges have reached different conclusions.

We believe it is in the public interest to clarify this aspect of the scheme, and we have proposed in our brief the addition of a new subsection to section 487.05 to make it clear that DNA warrants can be obtained in these very serious sexual offences.

The final point concerns destruction of samples under subsection 487.09(1). As you're aware, this subsection provides that samples must be destroyed as well as test results in certain circumstances, although a judge may make an order permitting retention. This scheme has worked relatively well, but we have discovered in Ontario that the subsection may benefit from slight modification to make it clear that samples can be retained in all cases where it is necessary in the best interest of the administration of justice.

In one case the police seized clothing from a suspect following an arrest for homicide, and there was blood on the clothing. Preliminary testing determined that the blood was consistent with having come from the victim, but the police wanted to confirm that it could not have come from the suspect, and confirmed that through obtaining a DNA warrant. In this case the evidence was very important for the prosecution. It did not establish that the offender had left substances at the crime scene, but rather that the crime scene had been left on the suspect. But subsection 487.09(1) required that this evidence be destroyed, and subsection 487.09(2) did not, on its face, permit a retention order.

Accordingly, in our brief we have recommended an amendment to this provision that would deal with this and other practical situations that have come to light in our day-to-day experience with the legislation.

Those are my comments, Madam Chairperson, ladies and gentlemen. Thank you for your attention.

The Chair: Thank you very much.

Are you ready or do you want to go last?

Mr. Jack Ramsay (Crowfoot, Ref.): I'm ready.

The Chair: Take ten minutes.

Mr. Jack Ramsay: Thank you, Madam Chair.

I want to thank our witnesses for coming all this way and for the very expert testimony they're giving us. We certainly need that calibre of testimony when we're dealing with a bill like this, because we are breaking new ground. We are certainly aware of the charter challenges that may face some parts of this bill.

There has been concern and I have a personal concern about proposed subsection 487.051(2), where this bill grants certain authority to take DNA samples after conviction. But that particular proposed subsection I just quoted provides for an exemption—the court may exempt. So there seems to be almost a contradiction here where the bill provides for the authority to take a sample and then allows for the exemption of the taking of that sample.

I raise this parallel or example. It may not be a good analogy, but if this goes through it means any judge can do what he wants in practically any of these cases through the authority of this proposed subsection. If they begin to function in a way not intended by Parliament through this proposed section, then we're going to have a situation similar to what we have now with the conditional sentencing, where violent offenders are gaining the benefit of conditional sentencing and are allowed to walk free when, really, it wasn't the intent of Parliament to have that happen.

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What do you say about this? Do you support the retention of this or would you support those who have said it should be removed in its entirety?

Ms. Renee Pomerance: No. We would ask you to consider removing this discretion as it relates to primary designated offences. It is apparent that the bill does distinguish between primary designated offences and secondary designated offences.

With respect to the secondary offences, which are less serious in nature, it is up to the judge to decide whether it is in the interests of justice to make the order.

The bill already recognizes that there should be a different test for primary designated offences. As you have indicated, it is a requirement that the judge shall make the order, but then a subsection that provides that he need not if certain conditions are met.... We believe there is justification for making that distinction less subtle and in making collection mandatory for primary designated offences.

In addition to the matters I raised earlier in my comments, one can also consider the impact of the appellate process. Whenever one has discretion, one must, by necessity, have a route of appeal. Appeals will also inject additional uncertainty. We will have increased litigation in cases involving data bank orders, and for that and a variety of other reasons we would ask the committee to consider removing this discretion. We do not believe it's constitutionally required with respect to the small category of serious offences which are primary designated offences.

Mr. Jack Ramsay: Your recommendation is conditional in that it doesn't include all offences, just the primary offences?

Ms. Renee Pomerance: We have restricted our submission on that point simply to the primary designated offences, given the gravity of those particular crimes.

Mr. Jack Ramsay: Why would you have this proposed section apply to any offence that is authorized? We have struggled to bring forward even a hypothetical example of where a court or a judge would consider using this. Do you know, from your experience, of any cases where it would be appropriate to use this particular section?

Ms. Renee Pomerance: I would suggest that with respect to primary designated offences we would take the position that there wouldn't be a case where the impact on privacy would be grossly disproportionate.

Mr. Jack Ramsay: And for the less—

Ms. Renee Pomerance: With respect to the secondary offences, it may well be, for example, that there could be a simple assault that is not particularly serious in its commission. Assault is one of the secondary designated offences. It may be appropriate to confer discretion on a judge to consider all of the circumstances, the prior record, the circumstances of the offence, etc., with respect to that class, but we believe there is no such need when one looks at the more serious category.

I note that in the United States, for example, at least 40 states that have data bank statutes provide for a mandatory sample collection without discretionary exemption. And when we look to our neighbour south of the border, we would suggest that would support mandatory collection, at least for the most serious category of offences. But we accept that it may be appropriate to provide the judge the power to consider all of the circumstances when one is dealing with offences of lesser severity.

Mr. Jack Ramsay: Okay. In your presentation, you recommended against an amendment to the bill that would allow for the taking of a sample without a warrant at the time of arrest or a charge. You said this would create a constitutional concern or perhaps a constitutional challenge. On what basis do you see a constitutional challenge being mustered?

Ms. Renee Pomerance: The Canadian courts have traditionally drawn a very clear distinction between fingerprints, for example, and the collection of DNA samples.

Not too long ago the Supreme Court of Canada, in a case called Stillman, found that the collection of hair samples for DNA testing and the collection of dental impressions for comparison purposes without warrant at the time of arrest violated both section 7 and section 8 of the charter.

And we believe, on the basis of the case law to date, that the courts might require that at the stage of arrest, where there has been no finding of guilt and when the presumption of innocence is still operative, that prior judicial authorization in the form of a warrant is required before those types of samples can be collected.

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Dr. James Young: I might add that the system of collection at the time of arrest is used in England, and certainly in solving cases it's extremely useful. You get a sample, you run it through the bank, and you may in fact solve cases. So in practical terms it's useful. The problem when one tries to bring it to Canada and look at the system is that England doesn't have a warrant system and isn't set up in the same way. That's where it runs into problems. Having looked at the English system and discussed things with Justice and our Attorney General—I think the Solicitor General is of the same view—I think while it would be great to have it, it probably would run into problems and might put the whole bill in some jeopardy.

Mr. Jack Ramsay: We heard from the police chiefs association yesterday, and of course they recommended that DNA samples be authorized after charge. One of the witnesses gave what I thought was a pretty sound rationale in defence of a charter challenge on that, inasmuch as the judicial process is now under way and all the actions taken once a judicial process has been initiated are subject to the court's examination and declarations.

I know we're moving into a new area and it is charter sensitive. Is that one of the reasons why you would suggest we be careful in this area? Or do you feel perhaps 10 years from now, or 5 years from now, or whatever, the sensitivity in this area might be reduced to the point where it might be feasible to amend the law to allow this to happen?

Ms. Renee Pomerance: It's hard to predict how the law will develop in the next 10 years, but if we look back in time, if anything, there has been an increased emphasis on the need for warrants and prior judicial authorization, particularly when one is dealing with searches involving the body and bodily integrity. Although it's true that at the time a charge is laid the police by definition have to have reasonable grounds to believe the person has committed the offence, the additional step of requiring a warrant ensures that the invasion of bodily integrity is subject to judicial scrutiny.

A judge who is presented with a warrant application has discretion whether or not to issue the warrant, depending on a careful balancing of all the interests at stake. Given the trend in Canadian case law to date, we believe the courts would likely require that the judicial assessment take place before there is a seizure of substances from the person.

The Chair: Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): We hear and have heard about this advancing technology. Do other jurisdictions have more advanced technology than ourselves in Canada?

Dr. James Young: No. Essentially what is happening in DNA is worldwide. There is what is called a technical working group, run by the FBI. They are setting North American standards for what is done. Various labs move at various paces in conversion, for example, from the earlier methods of DNA analysis to PCR, as they can purchase equipment and retrain people. But on where everyone is headed, they are on a fairly similar path.

However, agreement has to be reached both within Canada and internationally, for example with data banks. The best way of running a data bank would be if the information kept in a data bank in Canada matches information we would normally use and tests we would normally do in our lab but also would match a profiling system with the FBI or any of the states in the United States. Clearly we know this type of crime doesn't know borders, either within a nation or internationally. The more broadly we can do a search the better it is. We're all moving in the same directions, with the same technology.

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Mr. John Maloney: One of the arguments for retaining those samples is that advancing technologies will allow us to know more things. What more is there that we have to know?

Dr. James Young: It's not a question of knowing more things, it's a question of doing things in a different way or changing what results are recorded.

The FBI started a system some years ago and used the old technology. No one would establish a DNA profiling bank using that now, because the amount of sample necessary and the length of time to analyse every sample is incredibly longer and the amount of manpower to do it is incredibly larger. Therefore, anyone building a data bank now switches to PCR methods of doing data banks.

When the original bank was constructed no one knew anything about PCR methods. In fact, the FBI have essentially had to forget their old bank and start all over again with PCR so they can talk to anyone else. In fact, it is expected that new systems will be developed.

We're at a point now where with all of the DNA testing we can virtually exclude someone from having donated a sample but also reach numbers that are such that in some instances, with enough sample, we can absolutely say we think it's someone who did something, with astronomically high numbers. But what will change is how much sample, how fast we do it, how automated it is, and that's a major concern because right now in Ontario we're running well behind every other lab in the world on DNA. Our tests are coming in much faster than we can do them. The more automated we can be, the smaller sample we can do, the broader the number of things we can use it for, the better it will be. So we're looking at that kind of advance.

Ms. Renee Pomerance: Not only that, it may also impact on the cases that we can actually do DNA testing in. In the past, when we were restricted to RFLP technology, there were cases where you could not do a DNA comparison because you did not have enough sample with you. The new technologies now permit testing with minute quantities of sample, so there are cases that couldn't have been investigated in the past through DNA technology which now can be. It may well be that the new technologies not only give us different numbers or increase our efficiency but may also expand the types of cases where DNA can be valuable.

Mr. John Maloney: How much of a sample do you take, say, of blood or hair?

Dr. James Young: The amount of sample in order to...it could be a licking of an envelope that would be enough DNA, provided DNA is left. But in normal testing circumstances, a blot of blood a little larger than a dime and smaller than a quarter on a piece of blotter paper is plenty of blood as a sample to record, or a buccal smear, a smear from inside the mouth of the cells in the mouth, just with a tongue depressor smeared on a piece of glass. That is plenty of DNA for us to sample and to do a profile on.

Mr. John Maloney: Do you sample a portion of that to retain the balance?

Dr. James Young: Yes, essentially all you're doing with DNA is not getting any useful information in terms of.... I can't take someone's profile and tell you who they are in terms of their identity or whether they're bald, or whether they wear glasses, or whether they're blue eyed. What I'll get is the equivalent of a series of numbers or a code, and I compare that code and see if it matches another code.

What we're really doing is taking a gene and separating out the cells and then chemically taking the chromosomes and using specific chemicals to break certain chromosomes in certain places. Then we're taking a very small part of that chromosome and just reading a code off that one little part. But if we do it enough times, if I take a specific little wee area off all the chromosomes and I get a pattern 1,2,3,4 off that and I know that 1,2,3,4 is produced in 10% of the population, I know then that if I got someone else, everybody else that wasn't 1,2,3,4, I can throw their samples out. I know they don't match any more.

If I take a second sample and it turns out to be 4,4,4,4 and that only shows up 1 in 100 times in the population, I now multiply 1 in 10 by 1 in 100 and I have 1 in 1,000 people left as possibly matching that. The other 999 people do not match and are not that sample.

I take a third sample and a fourth sample and pretty soon I'm up to 1 in 1 billion or 1 in 10 billion or 1 in 100 billion, depending how many tests I do. But it tells me nothing more than at those 4 sites the code is 1,2,3,4 or 4,4,4,4 or 3,3,3,3 and 2,1,2,1—nothing more than those 4 pieces of information.

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So it doesn't tell whether I have diabetes, or whether I have any other genetic disorder, or any other piece of information, and in fact if I want information about you genetically, I'm going to find out where you go to the hospital and I'll break into your hospital file, because it's going to have a thousand times more information than anything I can get out of a DNA data bank, which just has this code that I probably can't track back to you anyway.

Mr. John Maloney: And yet your tests produce a profile. With advancing technologies, will this profile differ?

Dr. James Young: If you test the profile in a different way, the profile.... You go to different genes and you test different genes. So instead of testing chromosome 1 in position 4,000, you may go to chromosome 2 and test it in position 1,000. So the results are different, because the profile.... The profile you get is specific to a specific gene in a specific place, because you use chemical scissors to break the chromosome and only test this one little area, so it's not the same pattern on all genes in all places. It's completely different in every gene in every place. So, essentially, if we do it this way this year and that way next year, there is no way of converting between those two. We have to start and resample everybody the second way in order to make it work.

Mr. John Maloney: Who pays for the costs of analysis now?

Dr. James Young: There are three labs in Canada that do DNA analysis. The RCMP does it on behalf of all provinces other than Ontario and Quebec. Quebec has a DNA lab and Ontario has a DNA lab. Ontario then pays its costs of the Centre of Forensic Sciences through the budget of the Ministry of the Solicitor General. The other provinces are serviced by the RCMP lab.

Mr. John Maloney: With new technology, would it be your recommendation that we go back and retest all these samples to improve what the data bank can tell us? How much would that cost, and who...?

Dr. James Young: No. Since we had no data bank, I think we would set it up the best way we can right now and with recognized international standards. We would retain the samples that aren't used in a separate location, under separate code and in secure conditions. They would only be used in the event that the technology changed significantly and the decision was made that the bank was obsolete at this point and we now needed to change to a new method.

What you would then do is go back and decide whether you did some or all of the ones that were already in the bank, and then from that date you would test new samples, using the new technology. But if you haven't retained the old samples, you have no ability to go back and change technologies or to ever change the way the data bank is constructed, and it's for that reason they're retained. They literally will sit there unused for a number of years in secure surroundings and what would be left would be a card with a blot of blood on it, or a buccal swab, a slide with some saliva on it.

Mr. John Maloney: As years advance do these samples deteriorate in any way, shape or form, or change?

Dr. James Young: If stored under proper conditions they shouldn't deteriorate markedly. DNA can be temperature-dependent, but DNA testing has been done on very old samples, and in many instances for example we are solving 20-year-old homicides. DNA work has been done on mummies, so in the right conditions.... I think we won't be too concerned about 2,000, 3,000, 5,000 years, it won't bother us too much.

Mr. John Maloney: How's my time, Madam Chair?

The Chair: You're way over.

Mr. John Maloney: One last question.

With this legislation we're going to have a lot more DNA samples around. Do we have the wherewithal, the infrastructure, to deal with this both in Ontario and Quebec and federally?

Dr. James Young: What's proposed is that the actual DNA data bank would be run by the RCMP, and those samples would be tested there, the codes would be kept there, and then the samples would simply be stored.

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Now, I don't presume that's a huge number of samples when one looks at the size of a piece of blotting paper and storing that. Bear in mind that some criminals reoffend, so we only need their DNA profile once anyway. If this has a good deterrent effect, we won't need to draw as many anyway.

I don't see that as any sort of a management problem. What I see happening is that we'll then do the testing on our particular cases in our lab and compare the profile on the same markers with what exists in the bank in order to see whether or not there's a match.

Now, the number and complexity of cases that we use DNA on will go up. I think we're only hitting the tip of iceberg where DNA could be used. For example, in Britain it's being used for break-and-enter cases, but we're too busy solving rapes and murders to use it for break-and-enter cases. But with repeated break-and-enter cases in a community, that's a good use of DNA if it's a community concern.

So that's what I see going up for the use of it, but as for the storage and everything, no, I don't see that as an issue.

The Chair: Mr. Ramsay, you said you had one more question.

Mr. Jack Ramsay: Yes, there are really two.

We heard testimony from the Privacy Commissioner that he's concerned about the retention of samples. The profile is a different thing, but these are the samples. He talked about “function creep”, whereby it's all too enticing for other departments to say that if they could just get their hands on those samples, they would do what others are doing with the tax returns, and so on.

I'd like you to comment on that. I would also like you to comment on the suggestion that one of the witnesses made here before the committee with regard to separating the running of the bank from the RCMP entirely and putting it under a completely different category.

The Chair: A separate crown agency is what has been proposed—

Mr. Jack Ramsay: Under the Solicitor General.

The Chair: —by him and also Diane Martin from the Innocence Project.

Ms. Renee Pomerance: With respect to the concern about function creep and the notion that these samples might be used for invidious purposes not contemplated at this time, there are strict controls. If one looks to other areas of the criminal law, there are other examples of situations where there's a need to maintain the confidentiality of material.

For example, in the wiretap context, it's a criminal offence for anyone to make an unauthorized disclosure of a private communication that has been intercepted by the police.

We have every reason to believe that this provision has been effective in deterring the improper use of that kind of evidence. Insofar as what Bill C-3 proposes, which is, among other things, to make it a criminal offence to engage in unauthorized usage, we believe that this, together with the requirements of safe and secure storage, may well guard against any abuse that's contemplated.

With respect to the independent storage agency, perhaps I'll permit Dr. Young to comment on that. But if you are of the view that this is the preferable route and that this would be a more secure way of ensuring genetic privacy, then we would urge you to solve this dilemma by increasing the stringent controls rather than avoiding the retention of samples.

Mr. Jack Ramsay: I'd like to ask you a follow-up question on that. The Privacy Commissioner, Mr. Phillips, was concerned, from my understanding of his comments and concerns, not that the law would be broken but that the law would be relaxed as we went down the road because of function creep, the need to know, and the desire to know.

Dr. James Young: The problem with this is that the need to know won't provide any useful information. The information in the data bank is nothing more than a code that simply says what your genetic pattern is at a few specific sites. It tells nothing more. It gives absolutely no useful information. You couldn't predict or do anything with that information except tell whether it matches someone else's, because so small a piece is sampled. It's such a restricted piece of information.

The individual codes literally are restricted. For example, in some cases an area sampled may represent something that is in 50% of the population. So you haven't said or done anything of any great use. You see the code and you say so what, because 50% of the people have that.

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So the concern about exchanging information or using it is not warranted, because there's no information to use. As I said before, I would be far more concerned about my medical record and my driving history or my tax forms or anything else I fill out with the government. As both a physician and a scientist, I know that information is of no use to anyone whatsoever.

As for the separate agency, I think it's a matter of security, and certainly the RCMP know how to do security. I wouldn't have a major objection to a separate agency. I wouldn't see the need for it. But if it were set up and the salary were good enough, I would certainly be interested in applying. It sounds like a pretty good job.

Mr. Jack Ramsay: I want to thank you for that, because that's very important information for us to consider in the light of the concern raised by the Privacy Commissioner. It's important that the committee have that. We'll probably attempt to verify from other sources what you've told us, so we have as much information on that as possible to allay the fears some witnesses have raised.

The Chair: I have a couple of questions. Do you know the number of outstanding cases of sexual assaults, serious assaults and murders in Ontario? Do you have numbers?

Dr. James Young: Sitting in our lab right now?

The Chair: An officer came from Vancouver yesterday and he said that since about 1982 in the province of British Columbia there have been roughly 600 outstanding cases they are just dying to get at through the DNA data bank. Every one of these cases has a victim or a group of victims.

Dr. James Young: On assault, I'm not positive about our number. It's huge. I don't know whether we've counted it, because we have so many old files we could suddenly reopen.

We have a project in Ontario right now, Project Angel, looking at 20 old homicides in the London area alone, going back some 20 or 30 years. A significant number of those cases may have DNA evidence in them. If you took that, and unsolved cases, we would have to go back through our files and find where we had samples and semen samples. We would have easily in the hundreds. The number of current cases we're backed up on and trying to solve is well up in the hundreds, as it is for every other lab, because of the explosion of use of DNA.

Ms. Renee Pomerance: Certainly there are police forces in Ontario that have begun to devote specialized resources to the investigation of cold cases. Their work has already come to fruition in some cases. We believe the data bank will greatly assist them in their work.

The Chair: Ms. Pomerance, obviously you have looked at systems in other countries, or both of you, I assume, have. Does one country spring to mind as being really advanced, one that has a legal system similar to ours and one that is advanced in the statutory structure they have created and the type of data bank they have created?

Dr. James Young: England, Australia...New Zealand is working on it; most areas of the United States are. The structure of the legislation and what is being done are similar just about everywhere, and that includes retention of samples.

I was at a large forensic conference last week and Sir Alex Jeffries, the discoverer of forensic DNA, was there. Everyone there from the States and Britain talked about retention and its being necessary. The directions things are going in are pretty much the same. I've looked at legislation from several of the states and it virtually is patterned one on another, with some minor variations.

Ms. Renee Pomerance: There are variations concerning when the sample is to be collected. Some collect a sample on the way into the institution and some collect it on the way out. In some instances it's an administrative act rather than a judicial act. There are some minor variations from state to state. I think we would take the position that subject to the comments we advance, we would support the scheme that has been put forward in Bill C-3.

The Chair: I have a couple other questions; and Dr. Young, I'm really not trying to be provocative here, but the Morin inquiry is on everybody's mind—

Dr. James Young: The evidence at the Morin inquiry, yes.

The Chair: Yes. One of the things I just have to ask is about the centre and the problems that were underscored in that commission. I'm not here to investigate that or to be a jerk. I'm just trying to find out if you have seen evidence of those problems in other labs in the country—there are only two, Quebec and the RCMP—and if you're sharing information on how to avoid those problems and what you've done as a result of finding that out, etc.

• 1625

Dr. James Young: That's a very fair question.

First of all, with the problems in the wrongful conviction of Mr. Morin, the work that was done was done fourteen years ago and was in the area of both hair and fibre, but particularly in fibre evidence. Fibre evidence is trace evidence, and the issue in the case was not whether there were some other fibres that had gotten into the case, because we knew that all the time. The issue, the question, was when they got in. Since that's what you're comparing in the case of fibres, it's very critical, so the problem centred around that.

In any particular case, what is done and how it's done, including accreditation, is very different. In the Morin case, the critical piece of evidence in that case was in fact the DNA work, which is undisputed in that case. Unfortunately, for many years—most of the fourteen years—we were unable to do the DNA test. We knew we had a semen sample, but until a method was invented, there was no way to extract the DNA out and to be able to redo it for that case. That is in fact why we were having an inquiry—because of DNA.

Because of TWGDNA, which is the Technical Working Group in DNA, the standards and methods that we use in DNA, and the methods the RCMP, the Quebec lab, the Illinois State lab, and the FBI all use, are the same methods and standards. What becomes very important along with the accreditation—and I mentioned in my earlier remarks that we believe very strongly in accreditation; we are an ASCLAD accredited lab—is the fact that there has been some difficulty in deciding on a Canadian standard per se, so we've gone ahead and used the American forensic lab standard.

We think it's important that labs are accredited in DNA work, and we look forward to that as a quality assurance measure. What we do and how we do it in the lab versus that case is very different, but we certainly have learned a lot of lessons from it.

The Chair: So what you're telling me, then, is that we need to develop an accreditation scheme for our country, or buy into some international accreditation.

Dr. James Young: Yes, and my own personal preference is that we buy into someone else's. For the size of our country, and for three forensic labs, it makes no sense to reinvent the wheel when it's there already. It's basically what ASCLAD does, and what the Australians do is virtually the same with the exception that Australia has now included ISO standards in its labs. ASCLAD is about to do that, and we're about to adopt them.

The Chair: This accreditation scheme obviously involves someone or some group of people coming to take a look, right?

Dr. James Young: Yes.

The Chair: So would they then act as external auditors of the science?

Dr. James Young: They look at every aspect of a lab: how you run your manuals, how you run your lab, whether you're doing enough proficiency testing, whether or not you're doing blind testing. They walk through the lab and make sure it's clean, that it's functioning as a forensic lab should. When we have an accreditation—for example, our lab is a large lab—we'll have a team of six external investigators who, for one week, do nothing but come in and review everything that they want to review within our lab. They then tell us what we do well and what we don't do well.

The Chair: With this science and this technology, will the day ever come when the Windsor police service will have a little DNA lab?

Dr. James Young: I hope not. I like the job I have.

The Chair: You'd love living in Windsor.

Dr. James Young: I don't think you will, unless you see it become so mechanized and so straightforward. But with the kinds of systems that need to be in place in a forensic lab for continuity, for testing and stuff, I don't see DNA moving out to the field. I do see mechanization and many other forensic things being done. For example, using a computer program, you can go to the scene of a murder right now, look at a blood splatter, enter a whole bunch of data, and then figure out where it came from, at what angle and stuff, which you couldn't do before. But I don't see us drawing DNA out into the field.

The Chair: Ms. Pomerance, one of the things that the charterability of this turns on is the intrusive nature of the taking of the sample. Right now, the sample is taken by drawing blood, by a swab, by plucking a hair, or I suppose by clipping fingernails or what have you. But we're now hearing they will be able to do it from a breath test, or by a person grasping an instrument, similar to taking fingerprints. The DNA sample necessary will become smaller and smaller and the taking of the sample may be less intrusive than what you have to go through when you're printed. If anybody's ever been fingerprinted—and I have, details to follow—people have to stand around you and it's physical. It takes some time. I think if you were under arrest—and I wasn't—you might get pretty agitated by it. It's a confining sort of thing.

• 1630

As it becomes less intrusive, I'm wondering whether that's going to change the charterability of the thing and move the law forward. Am I being clear in my questions?

Ms. Renee Pomerance: I believe so.

First, with respect to the intrusiveness of the procedures, it's true these procedures are more intrusive than fingerprinting, but at the same time the courts have recognized they are much less intrusive than a number of other types of procedures that are used. For example, collecting a stain of blood through pricking the finger is much less intrusive than collecting a liquid blood sample to investigate an impaired driving offence.

There are various cases that have considered the constitutional validity of Bill C-104. We have one case in Ontario—SF. There are two cases in Alberta—Brighteyes and Schwalm. Courts have generally ruled that these procedures are relatively non-intrusive in the sense that they involve very minimal affront to dignity and very minimal discomfort. They are fleeting in their impact and don't pose any medical risks or any serious threat to bodily privacy.

As it stands now, I think they are not exceedingly intrusive. It may well be they will become less intrusive and there are several cases where, for example, a discarded cigarette butt, chewing gum, or a licked envelope has been able to yield a DNA profile.

With respect to the charterability, when one is looking at the question of collecting samples at the time of charge, the intrusion issue is only half of the equation. When one looks at the Stillman case, for example, the court was concerned not only with the perceived intrusiveness of the procedures but also with the fact the DNA wasn't going anywhere. There was no risk this evidence would be lost or destroyed at a later time, and accordingly there was no reason why the police couldn't obtain a warrant before they seized it.

Even if the procedures vary and become less obtrusive, there still may be some issues to consider in connection with the collection at time of charge issue.

The Chair: I swear this will be my last question, although I think I could go all night.

One of the things we heard from an earlier witness was that once you have a profile in the computer there's no way to erase it from the computer. In other words, there will always be a profile in there, but they can separate the identification from the profile itself. People who have spoken to us and who are concerned about this are concerned about the privacy aspect of that. Once the profile's in there, even if they say they're eliminating the profile, they're not.

Dr. James Young: I can't comment on whether you can or you can't. I can barely turn my computer on.

The Chair: I had to memorize that.

Dr. James Young: Yes. They keep changing my codes.

The question isn't whether you can wipe it out. If you can separate the identity, how useful is the information? The profile is of no use for anything anyway, particularly if you can separate the identity from the profile. The profile's nothing but a collection of numbers, so it can't be used for anything. So whether it exists or doesn't exist, I'd look at it and say so what? What's going to be done with it?

Ms. Renee Pomerance: My understanding is that the proposal in Bill C-3 does not require destruction but requires that the results be rendered inaccessible. I have a very limited understanding of computers as well, but that will greatly assist the Centre of Forensic Sciences, given the way it records data obtained from a profile. If there is a requirement of actual physical destruction, this can become a very difficult process and may, in some cases, be rendered impossible, given the software programs that are used. I think the rendered-inaccessible option would overcome some of the problems that otherwise would arise in this context.

• 1635

The Chair: I think that last one was my last question, but I'm the chair and I have the gavel.

Can you tell me, Dr. Young, where this is going to go? How are we going to be collecting samples in five years? How much are we going to need?

Dr. James Young: It's hard to tell. For example, there's a lot of work being done on a new system called mitochondrial DNA. Right now it takes less sample, but it's very expensive and very difficult scientifically. There's also a lot of work being done on increased mechanization of testing samples.

Certainly the amount we need will be less. As to how we do it, I think the advances will simply be on how fast we can do it and how many humans it takes, and more than...we're pretty well there with the results. We can get the desired result we need now. I don't know whether we'll go to fingerprints off glasses or to breath samples. We may or we may not.

The problem with that, to my mind, is that we have to be sure we can collect them and ensure they're not contaminated. And when you're into breath...for example, there's a lot of other “breaths” in here besides mine. And for glasses, you would have to be assured that the glass was absolutely washed and that only that one person's DNA was there. I think the beauty of a buccal swab or a blood sample is that I'm getting a big sample from somewhere and I'm really quite sure where it came from, so the risk of contamination is very small.

The Chair: Okay. Thanks.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): I want to apologize to both of you for arriving late and missing your presentations. I hope my question hasn't already been posed to you.

Yesterday, witnesses from the police, in response to a question from a member opposite, spoke about the role of DNA in the sense of a designated DNA offence and how that would play out in terms of a plea bargain. That is, when it came to the crown's office, if the offence was going to be one where an individual would have to give a sample of DNA—it would be in the legislation—how do you see that playing out in terms of crown counsel then possibly dropping or pleading away charges?

The Chair: The example was “I'll plead to this offence, but don't bank me”.

Mr. Peter MacKay: Dropping to lesser—

Ms. Renee Pomerance: I suppose it's difficult to comment in the abstract, and invariably those sorts of discussions would involve the exercise of discretion based on the particular facts that are before that crown counsel. So it is difficult to comment in a general way, but I would expect that crown counsel would be mindful of the fact that the inclusion in the bank is a very important means by which to secure protection of the public and by which to solve any future crimes that might be committed. And I would expect that it is not a strategy that would be adopted with any frequency, certainly, if at all.

Mr. Peter MacKay: Okay. I understand that would be the instruction in the crown counsel handbook, but do you foresee police officers coming to you for pre-charge advice and asking if they should up the ante in the hope of getting a plea out of some guy?

Ms. Renee Pomerance: Generally, in Ontario at least, police may come forward for pre-charge advice, but we don't have any pre-charge screening. Ultimately the decision as to which charges should be laid is for the police to make.

Mr. Peter MacKay: Sure.

Ms. Renee Pomerance: I'd like to think that the charge would not be elevated beyond an appropriate level simply for the purpose of securing a plea.

One thing that may occur, I suppose, as a result of the data bank is that it may well be that an offender who would otherwise be inclined to plead guilty to a particular offence may decide not to do so, because that person realizes that a finding of guilt will put him or her in the data bank. The person may decide to go to trial and endeavour to secure an acquittal because he or she has a concern about possibly being matched to other offences. I see that as a possibility in some cases.

I don't see the other two possibilities as posing any real concrete risks, though of course, as I say, it's difficult to comment on how that discretion might be exercised in a given case.

• 1640

Mr. Peter MacKay: I would like to follow up on that, Madam Chair.

Using that same scenario, how do you reconcile that with...I understand the position being that you wouldn't want DNA testing taken pre-conviction for that very reason, that persons may come to court, enter a plea and never return, on the basis that they have a real fear that their DNA will be taken upon conviction, thus a match made to an existing crime for which they're involved, and they're going to be on the lam if they are forced to give their DNA?

Ms. Renee Pomerance: Well, the one thing I'd say—I hope this addresses your question—is that there is, of course, a way of getting a DNA sample at the time of arrest, and that is through a DNA warrant.

Mr. Peter MacKay: Sure.

Ms. Renee Pomerance: So that option will always present itself to the police in any case where they have the requisite grounds.

The concern is that if you were to take the data bank scheme and provide a carte blanche to take those samples without warrant at that stage, that would raise the constitutional difficulties. But, to date, police have been able to use these provisions in a great number of cases and have been able to obtain that evidence. They have simply had to obtain a warrant before they do it.

Mr. Peter MacKay: Do you feel there should be something included in the legislation, then, that would give judges and crown counsel the discretion to make that request pre-conviction.

Ms. Renee Pomerance: I'm sorry, to make a request that the sample be...?

Mr. Peter MacKay: That the DNA be taken.

The court itself could order it, much like a gun order or putting in conditions of release, that prior to being released you are to cooperate with the police and give a sample.

Ms. Renee Pomerance: Well, I suppose in a sense we're already able to do that through application for a DNA warrant. Once the warrant is issued by a judge, the person is compelled to provide a sample in accordance with the specific investigative procedures.

So while I'm not sure it would occur in the context of a bail hearing, to a great extent it already occurs through an ex parte application for a warrant under section 487.05, and in that instance it's not conditional. If a warrant is issued, the person is required to provide a sample.

Mr. Peter MacKay: Thank you.

The Chair: Peter, don't you think it would be like a judge saying, okay, I'll let you out, but you have to give a statement? Wouldn't that be the same thing?

Mr. Peter MacKay: No, I don't think so.

The Chair: That's why I wasn't a crown for my whole career. Anyway....

Go ahead, Nick.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): I want to get a little bit technical. I'm trying to get my head around the retention of the samples, because you seem to have made a very strong appeal to retain the samples.

If you test the same sample from the same source many times, you're going to get the same profile, are you not?

Dr. James Young: No, you get a profile based on what test it is you do. So if you do an RFLP test, you get an RFLP profile. If you do a PCR test using probes 1, 2, 3 and 4, you get that profile.

Mr. Nick Discepola: You get that profile, but you use the same PCR?

Dr. James Young: But we don't know that PCR is the bee's knees. PCR next year may be what RFLP was five years ago, and that's the problem. I can't tell you that.

Mr. Nick Discepola: Are PCR and RFLP equivalent to beta and VHS, for example?

Dr. James Young: No. RFLP is equivalent to an Apple IIe, and PCR is the MacIntosh.

Mr. Nick Discepola: But doesn't it matter. If I always use an Apple IIe, for the rest of my lifetime, I'm going to be okay. It's the software that changes—

Dr. James Young: No, not when I'm running my lab now using something completely different because—

Mr. Nick Discepola: That reminds me of my director general who wanted the most up-to-date computers all the time.

I'm trying to get at what we need here. What we need here is a bank that gives us a profile that we can try to match with a crime scene index. Right?

Dr. James Young: Well, the problem is I won't be running my crime scene index using those measurements any more. I've moved on, because for my ability to do the job I have to do, I'm now using much faster, different technology. The bank is way back here, so I'll stop using the bank.

Mr. Nick Discepola: But you're giving me examples on how I can do it with a lesser sample, even automate the process, and so on. If I'm always using PCR, won't I get the same result?

Dr. James Young: If we never switch from PCR and from the same.... Once we've done the samples, what you're suggesting is if we choose PCR and we choose tests 1, 2, 3 and 4, we are stuck in time forever and in 1, 2, 3 and 4. Next year, when the FBI and England and everybody else decides they're going to PCR 15, 16, 17 and 18—

Mr. Nick Discepola: All right.

Dr. James Young: —we will never do that. If our lab decides there's a huge breakthrough and we can suddenly, instead of taking 48 hours for a test, produce it in 15 minutes and run it automated and get rid of all our backlog, so we switch all our samples to the new way, the data bank is still back here, so we can't talk to the data bank any more.

• 1645

Mr. Nick Discepola: Not only the technology, whether you use PCR or RFLP, but the types of tests you do within that technology.

Dr. James Young: Oh, absolutely.

Mr. Nick Discepola: They give you different profiles.

Dr. James Young: Yes.

The Chair: Then you wouldn't have to set priorities. You could just do all the tests, faster and faster.

Dr. James Young: We would love that day to come. It's priority setting that created the problem in the Bernardo case. That's what Bernardo was about: the beginning of a lab, swamped with samples at that time. At the time of Bernardo we had one person trained in DNA. We are just finishing training...we'll have 50 people doing DNA, and we are further behind on DNA now then when we were in the Bernardo days, because of the explosion of the use in cases. We are still well behind the curve in catching up with it.

The Chair: I want to thank you very much. Every day I say we are really having a good time with this file, because it's a lot more interesting than some of the things we've done. It has been a real education. You are both very professional and very helpful and we thank you very much.

We'll rise for a minute while we get our next witnesses organized.

• 1646

• 1654

The Chair: We're back. From the Barreau du Québec we have Carole Brosseau, who is a lawyer; Anne-Marie Boisvert, who is also a lawyer; and Giuseppe Battista, who is a member as well.

• 1655

We welcome you. You've been here many times before, so we'd like to hear what you have to say and we'll have some questions.

[Translation]

Ms. Carole Brosseau (Lawyer, Barreau du Québec): First of all, I would like to thank you for inviting us to take part in your proceedings today.

With me, as you said before are Anne-Marie Boisvert and Giuseppe Battista, both of whom are lawyers and members of the Standing Committee on Criminal Law of the Barreau du Québec.

This committee, which is and advisory committee of the Barreau du Québec, is made up of representatives from a number of disciplines: defence lawyers, Crown attorneys, professors and police officers. So we draw on a range of views in presenting our positions. We try to have as broad a vision as possible.

Once the advisory committee has made a suggestion, they are analyzed or not by the administrative committee of the Barreau du Québec.

Ms. Anne-Marie Boisvert will be presenting our comments on Bill C-3.

Ms. Anne-Marie Boisvert (Lawyer, Member of the Barreau du Québec): Good afternoon. I see that it is getting rather late, so I will try to move quickly to our main points.

First of all, I would like to say that the Barreau du Québec agrees with the objectives of the Bill. It also agrees with the principles set out in clause 4, and is pleased that a specific piece of legislation is being passed to govern data banks, legislation outside the Criminal Code.

That said, the Barreau du Québec thinks that in its present form, the Bill probably requires reworking. In fact, the Barreau fears that in its present form, the Bill does not comply with certain principles which are stated as being fundamental, more specifically, protection of privacy.

If we understand correctly, the Bill creates a data bank, and the data bank would be made up chiefly of two indexes: a convicted offenders' index and a crime scene index, which is much broader in scope.

I would say that the Bill is quite clear regarding the convicted offenders' index. The procedure for entering information into the convicted offenders' index is relatively specific. The procedure for removing information from it—if this is the correct term, given that the information is kept indefinitely—or the procedure for holding separately certain information is relatively specific as well, except perhaps with respect to individuals acquitted of an offense.

In fact, the data on the individuals acquitted of an offense will be in the convicted offenders' index for their whole lives. There is provision for holding information separately, but the Barreau du Québec thinks this call into question the whole concept of acquittal and innocence.

We have more problem with respect to the crime scene index. Parliament was probably thinking of a bank of as yet unconvicted suspects when it provided for the crime scene index in clause 5.

If we read the Bill, we see that many more individuals other than possible suspects may or must be included in the crime scene index, unless there is some third type of index somewhere that the Bill does not mention.

The victim from whom the samples are taken, innocent by-standers, the spouse, for example, must be included somewhere. Either there is no reference to a third index in the bank, or they are included in the crime scene index. We even think that some people could be included in the crime scene index without even realizing it. I'm thinking, for example, of victims or innocent by-standers. So the information remains in this index indefinitely, although in the case of the convicted offenders' index, it is possible for the information to be held separately or not communicated. There is no such provision for the crime scene index. Consequently, the information remains in the index indefinitely.

• 1700

This leads me to what I was saying in my introduction. For the moment, the objective of the bill is to identify criminals and to protect privacy, but the fact that information is kept in an index indefinitely on people who have never been suspects causes us to fear that the index may some day be used for purposes other than identifying criminals.

If the idea is to “index” everyone eventually, victims will have had the honour to be among the first to be included in the index. I have a little trouble with that.

Generally speaking, the Barreau du Québec thinks we need to provide for a procedure for removing information from indexes, one that goes beyond simply holding separately the information contained in the convicted offenders index.

In our brief, we talked about destroying samples and destroying indexes. We suggested a ten-year period, which was chosen at random, the main idea being that there must be provision for removing information from the index when it is no longer necessary to keep it in order to meet the objectives of the bill.

There should perhaps even be provision that after a certain period of time someone would have to prove that it is still in the public interest and in keeping with the spirit of the legislation to keep certain information and certain samples.

No procedures are provided for the victim from whom the samples were taken and who would like the information removed from the file at some point. Or the spouse who provided samples could simply be eliminated from the suspects. There is no way out.

Information on a person who gets a pardon is kept in the convicted offenders index for his or her entire life. I would say that that is true as well of people who are acquitted.

Consequently, the Barreau du Québec is afraid that the bank could be used by certain parties for purposes other than identifying criminals.

In general, this is the Barreau du Québec's view of the Bill in its present form. We think it requires more work, particularly as regards the crime scene index. Perhaps it should be defined more specifically and provision should be made for procedures to destroy certain data.

I would now like to make three more specific comments.

There is reference to an index to be used by people investigating criminal offences. The Barreau du Québec thinks the bill should set out the procedures to be followed by the defence in order to have access to certain information, in the context of a trial, and even access to some samples for analysis by its expert witnesses. The reference to private laboratories in our brief refers somewhat to this idea, but the main point is that there should be a procedure whereby the defence can gain access to the information in the context of a criminal trial.

Moreover, the Barreau du Québec suggest a somewhat tighter procedure regarding the authorization for taking samples. Comparisons could be made to the procedures in place for wiretapping.

In the case of wiretapping, it was thought that privacy and people's conversations were so important that an application for wire tapping should be submitted by a designated agent. No such procedure is in place to authorize people to poke around an individual's DNA. Consequently, we suggest that a procedure somewhat similar to that which exists for wiretapping be established for the taking of samples for DNA identification purposes.

Finally, clause 6 of the bill talks about the communication of information between states provided, states the Bill, there are agreements or arrangements in place between these states.

• 1705

The Barreau thinks the agreements mentioned in clause 6 of the bill must cover more than the communication of information. These agreements must also set out procedural guarantees somewhat similar to those that exist in the Mutual Legal Assistance in Criminal Matters Act or the Extradition Act.

Thus, before information is communicated, it must be clear that Canada can ask for certain guarantees, not only as regards confidentiality, but also as regards the use that will be made of the information. Consequently, it must be very clear that the agreements will go beyond the communication of information between states.

I don't know whether my colleagues would like to add something.

[English]

The Chair: Thanks.

All right. Mr. Cadman.

Mr. Chuck Cadman (Surrey North, Ref.): Yes, I just have one question here.

I understand your concern with the privacy aspects, but we just had a witness tell us that the information that's going to be on file is basically just a series of numbers that are only used for comparison purposes and absolutely nothing else. If I understood it, it's useless for doing anything else other than just comparison. I'm wondering what you're basing your assumptions on, or what your fears are, with regard to the possibility that it could be used for something other than just these comparisons. Do you understand what I'm saying?

Mr. Giuseppe Battista (Member, Barreau du Québec): Yes. I heard some of the comments of the previous witness, and I believe he's more qualified on the use that can be made of this type of information. However, our concern is that with today's technology—and I believe this was one of the issues he raised—we are limited to information A. At least in our mind it is not clear what the data bank will contain when we look at the fichier de criminalistique. I don't know what the actual English translation is, but I'm not talking about the information concerning the convicted person but the—

Mr. Nick Discepola: The crime scene index.

Mr. Giuseppe Battista: The crime scene index. Thank you. That information with today's technology tells us A. It allows us to identify an individual or a person. Maybe with tomorrow's technology it will permit us to do other things. We don't know that.

Our concern is that the law as it now stands doesn't necessarily clearly define who is part of the crime scene index. It doesn't exclude victims. We were having a discussion earlier with a colleague here, and his view was that the crime scene index would contain the identification of the suspected criminal. Maybe, but that's not what our reading of the law says.

Our reading of the law says it contains information that is found on the scene, on the person of the victim, and our concern was that this means a victim will be indexed. On what grounds? Why? Why should a victim be indexed? What crime has she committed? Why should the state want to keep that information on file? That's our concern.

So today we're told we're going to keep it on file or we won't keep it on file. We don't know. The law, in our opinion, doesn't clarify that enough. And with today's technology, all it allows us to do is to identify someone with a genetic code, but maybe tomorrow the genetic code will allow us to establish a psychological profile on someone. Maybe it will do more.

Our concern is that the law should limit itself to what it purports, which we find noble as an objective. The principles that are stated at the outset we agree with, and there should be mechanisms that assure us the information can only be used for the purpose for which it is claimed and that it will be destroyed as soon as that objective is obtained.

Mr. Chuck Cadman: Thank you. Maybe we need a few more experts in just to really explain to us where they see this technology going and if the opportunity is there to—

Mr. Giuseppe Battista: Yes. That is our main thrust. We can understand that someone who's been convicted.... Let's take the example of people who have been involved in serious violent crimes, repeat offenders. We can understand very clearly society's need to protect itself, but that's what this law should be doing, and it should be eliminating any ambiguity that we raise.

• 1710

I heard the witness say that all it is is a number. Fine, that's what it is today. I don't know what it will be tomorrow. And I don't want to doubt science's capabilities; I want to trust science and believe that science will be able to do much more, and that's what I'm concerned with.

Mr. Chuck Cadman: Thank you.

The Chair: Mr. McKay.

Mr. Peter MacKay: Do you foresee the possibility, then, of having perhaps a third category where the DNA would be kept separate, used specifically for trial purposes in the case of a victim and then sealed or kept separate? You could also include in that the DNA of individuals who were acquitted of specific crimes and perhaps individuals who eventually may be pardoned. Do you foresee that you could have a third, separate category and try to keep that out of the realm of any future use?

Mr. Giuseppe Battista: There should be one category for people who are convicted. People who are not convicted, people who committed no crime, should not be in any kind of data bank, period, whether they're a victim or whether they're innocent.

Section 9 says “will be rendered inaccessible”. I have the French version and I'm translating as I'm reading.

[Translation]

Information in the convicted offenders index shall be rendered inaccessible in the case of information in relation to a person who has been convicted of a designated offence, after the conviction is quashed.

[English]

So we're only rendering inaccessible. This is an innocent person. This is how we have to view this. This is a person who has been declared not guilty of a crime. Why should that information simply be inaccessible? It should be destroyed, period.

It's the same thing for victims. Anybody who's entered any kind of bank for the purposes of resolving a crime, that's legitimate, but once it's done it's over with. The best example that comes to mind is either Mr. Guy Paul Morin's case or Mr. Milgaard's case. For over 20 years Mr. Milgaard claimed he was innocent, and we were able to establish that with DNA recently. So somewhere, something should be kept. I can very well see the need for that, but not in a national bank.

Mr. Peter MacKay: Let me pose this question to you. What if the exculpatory evidence, the DNA evidence that is to be used ten years after the fact, comes from the victim and it is destroyed?

Mr. Giuseppe Battista: I'm not saying that all evidence should be destroyed. What I'm saying is that it should not be part of a national bank. However, I would hope that a police force that investigates a crime scene would not destroy material evidence that establishes that a crime took place.

Mr. Peter MacKay: So the police would keep a separate bank.

Mr. Giuseppe Battista: Not necessarily a bank, but I could see police bodies, police corps, keeping files as they do now. I don't see the need for a national bank where there's a central system where anybody can have access to that type of private and highly confidential information.

Mr. Peter MacKay: The problem as I see it, quite frankly, is that once the police have taken a sample and it's been put on any type of system, whether it's their own or a national bank, which I think is what this legislation contemplates eventually, the tendency is always going to be there to run a check if they have the technology and the ability to do it. From that, again I put the question back to you. What are the potential abuses? What is there to hide? What does a victim or an innocent person who's been acquitted have to fear from the fact that their DNA is there somewhere, just like a fingerprint? If they have committed no crime they have nothing to worry about.

Ms. Anne-Marie Boisvert: Maybe what she has to fear is temptation one day. The way we read it is that we've had our Clifford Olsons in Canada. We read novels about serial killers. It looks like this national bank, this perpetual bank, is there because Canada is full of serial killers, and it means we would have to go back one day to find the answer to one unsolved mystery.

What we say is that at one point there should be time limits. If, for some good reason, we want to keep some data longer, somebody should have to demonstrate that it is necessary to keep it. What we say is that we should look at this the other way around and maybe have a little more respect for the privacy of people.

• 1715

Mr. Peter MacKay: Similar to when you have to get a warrant, for example, and have to go to a justice of the peace and make your case, essentially, as to the need. You're saying that after the fact, for whatever use you want it, you would again have to justify the need for the storage or the keeping of the DNA.

Ms. Anne-Marie Boisvert: Yes, but for a certain—

Mr. Giuseppe Battista: In cases where it was legitimate to keep it in the first place, our position is that it should be perpetual.

Mr. Peter MacKay: Okay.

Mr. Giuseppe Battista: At some point, there should be some kind of limitation provision—for example, after 10 years or 15 years, where this person has not been involved in any other crime. It was one offence, but it was an offence that was designated by statute, so we took the person's DNA, 15 years have gone by and this person has not been involved in any kind of criminal activity. Why should we keep this sample?

If there are reasons to keep the sample, then it should be kept. All we're saying is that there should be some kind of mechanism or procedure that provides judicial review or third-party review at least.

This brings us to another issue, the point made by my colleague about getting the authorizations in the first place. You mentioned going before a justice of the peace. We think the burden should be higher, the standard should be higher.

When we're looking at electronic surveillance, many practitioners will say that the real test is in the prosecutor's office. The prosecutor will make sure the police have done their homework; before they're going to invade someone's privacy, they have met all the required statutory provisions, constitutional provisions, and that they're not simply going to invade someone's private life. That is lacking in these proposals, and it's in contradiction, we think, with the stated objective of the law.

Mr. Peter MacKay: I just want to make sure I follow you. You're saying that you would take the police out of the loop, essentially have the police go to the prosecutor first and have the prosecutor make the police—

Mr. Giuseppe Battista: Just as they do for electronic surveillance—

A voice: Wire tapping.

Mr. Giuseppe Battista: —for a wire tap.

Mr. Peter MacKay: Okay.

Mr. Giuseppe Battista: It's an invasion of privacy. We're not just picking up a document, we're taking someone's genetic information. It's the ultimate invasion of privacy.

Mr. Peter MacKay: I don't say this disparagingly, but is it not Orwellian to think that this DNA is somehow going to be used for some genetic mutation purposes or something down the line, testing or matching?

Mr. Giuseppe Battista: Let's look at it from a more practical point of view. Your argument before was that if someone has nothing to fear then why wouldn't they want to be in a bank.

Mr. Peter MacKay: Right.

Mr. Giuseppe Battista: My position is, why should someone be in a bank if there's no reason for them to be there? Your point was that if someone's in a bank then the temptation will be there to go check. So what if tomorrow's technology allows us to check for other things with the information we possess in that data bank, not related necessarily to crime but useful, we think.

It might cut costs down the line somehow for health care if we could just tap in and see who has this genetic code. Then we would be here sitting around and people would say there are millions of dollars, there are children who don't have schools, why shouldn't we be concerned about cutting the taxpayers' costs for that?

That technology may one day come to be. I don't know. Maybe what I'm saying is completely ridiculous. I don't know, I'm not qualified to say these things, but I'm saying that they're concerns and they're legitimate, I submit. We should make sure no law allows that to happen, if it can, when that's not the stated purpose of the law.

Mr. Peter MacKay: Okay.

The Chair: Thanks, Mr. MacKay.

Mr. Discepola.

[Translation]

Mr. Nick Discepola: I think we are touching on your two concerns. If I am not referring to the right provision, please correct me.

When you talk about the communication of information with institutions of another government, are you referring to subclause 6(3) or 6(2)?

Ms. Anne-Marie Boisvert: To subclause 6(5).

Mr. Nick Discepola: This subclause is only about whether a profile is included in a data bank or not.

Ms. Anne-Marie Boisvert: Yes.

Mr. Nick Discepola: So all we can disclose to another institution, let us say the American FBI, is that yes, a particular profile is in our data bank.

• 1720

Do you have any concerns about such a communication. I did not completely understand your fear. Would you please outline the reasons for your concern?

Ms. Anne-Marie Boisvert: According to our reading of the bill, you are right. If, under subclause (2), an individual's profile is in the convicted offenders index, the police force can say whether the person is or is not in the index.

However, if the individual is not in the convicted offenders index, then we can go to the other index, the big index, where there are all sorts of things on suspects, victims, and so on. And then it becomes possible to say more than yes or no; the profile can be sent.

Mr. Nick Discepola: No. The bill states that neither the profile and or the sample must ever be provided.

Ms. Anne-Marie Boisvert: The bill states

“... communicate a DNA profile contained in the crime scene index to the government of a foreign state, an international organization established by the governments of states or an institution of any such government or international organization.”

That is in subclause (4).

Mr. Nick Discepola: But we have been told that a profile by itself cannot reveal anything, that there was no danger. I am always trying to make an analogy with another technology, but I cannot do that today. The profile itself is useful only for identifying the individual from whom the sample was taken and of whom the profile was made. I did not completely understand your concern, but I have made note of it.

As regards the keeping of samples and the profile, I believe you are referring to subclause 6(2).

Ms. Anne-Marie Boisvert: No, not 6(2). I imagine we are referring...

Mr. Nick Discepola: Excuse me, I meant clause 9.

Ms. Anne-Marie Boisvert: ...simply to the fact that there is no clause that provides for the setting aside or destruction of samples in the crime scene index.

Mr. Nick Discepola: Subclause 9(2) states that the information is to be rendered inaccessible. Here again, the reference is to the data bank.

Ms. Anne-Marie Boisvert: In a convicted offenders index?

Mr. Nick Discepola: Exactly.

Ms. Anne-Marie Boisvert: But the victim's profile is not contained in the convicted offenders index,

Mr. Nick Discepola: That is my third question. I think you raised a good question about victims regarding the samples that are taken when all the evidence is being collected, and so on.

You also referred—and I believe Mr. Battista raised the issue—to the reason why the clause was drafted to provide that the information be rendered inaccessible. We must understand how this works in the case of the profile: nothing is revealed; the sample is never revealed. The only thing that can be done is to take two samples from different sources. The computer processes them and comes up with someone's name. That is the only thing that is revealed. The contents of the profile are not even revealed. All that is revealed is the name.

They have explained that the information cannot simply be wiped out. I am in computers, and I don't quite understand why it can't be done. The information in these electronic archives cannot be destroyed. So we solve the problem by removing the link, that is, by removing the name associated with the sample.

To my mind, having access to hundreds of thousands of profiles doesn't do you any good if you don't know the name that goes with each profile. That should alleviate your concern, shouldn't it?

Ms. Anne-Marie Boisvert: I don't know whether you will be satisfied with my answer. I don't know very much about these things either. I also don't know much about computers. However, the Barreau du Québec has interpreted the bill.

Mr. Nick Discepola: Let me try and illustrate how this works. I give you Montreal's telephone directory, containing only numbers but no names. But I don't give you the yellow telephone director, which contains all the names corresponding to the telephone numbers.

• 1725

Ms. Anne-Marie Boisvert: Let me give you an example. We have expressed reservations, or in any case asked questions, about what goes into the crime scene index. I invite you to think about this.

Personally, I don't feel very reassured by somebody's assurance that victims will not go into the crime scene index. In its present form, the bill makes it possible.

So if someone tells me that I shouldn't be worrying today because with today's technology we can't do the things I worry we'll be doing tomorrow, it remains that, in its present form, the bill will make it possible to do these things once technology catches up. The bill has been drafted with today's science and practices in mind. The future is not taken into account. I think the bill should be drafted somewhat more stringently. That's what I would say.

So when today I am told how the system would work, that it's enough to break the link between a subject's name and his DNA profile to make the data inaccessible, I am willing to bet my right arm that at some point in the future we will be able to do something with the information.

I don't see the point of keeping data that we can't use.

Mr. Nick Discepola: We are not keeping the data.

Ms. Anne-Marie Boisvert: We are putting the data aside.

Mr. Nick Discepola: No, we are not keeping the data. If someone is acquitted, his name is delinked from his profile. Unfortunately, the profile itself cannot be destroyed. So we store it. But the subject's name will be removed from the data bank. No one will ever have access to his name.

Ms. Anne-Marie Boisvert: Is that in the bill?

Mr. Nick Discepola: That is why the bill is worded as it is. The data must become inaccessible. According to expert testimony, the technology used to collect and analyze samples, and to store them afterwards, makes it possible to destroy the link between the name of the person who provided the sample and the profile. The profile becomes inaccessible. I have no problem with that.

However, I was glad to hear your comment on having victims' names in the data bank, because you have put your finger on something there.

Mr. Giuseppe Battista: But, according to your reasoning, there is no problem for the victim either, because the victim's profile would be inaccessible, and we would have no numbers or indexes. So there is no problem.

Mr. Nick Discepola: There is, because the victim's sample goes into the crime scene index. This means the victim's name would appear if he committed a crime in the future.

Ms. Anne-Marie Boisvert: Yes, and he will have done his...

Mr. Giuseppe Battista: ...or if he is investigated for some reason.

Mr. Nick Discepola: No, because there is enough evidence. You are a lawyer. I am not, but I do know that no one will be able to access the data bank without going through an established procedure.

Mr. Giuseppe Battista: The commissioner will decide whether to grant access to the data bank and to the information it contains. But you will not need a warrant from a judge in order to take a sample from someone. The data bank will be the resource in which all those data are stored.

We are concerned by the fact that all these data will be contained in the bank. You gave us an example of a telephone directory containing only numbers, but no names.

Mr. Nick Discepola: That was perhaps not a good example, because all you would have to do is dial the number and you would see who answered the phone at the other end.

Mr. Giuseppe Battista: No, not that, but perhaps one day we could come up with a program that could determine where those people lived, for example.

[English]

The Chair: DNA.

Mr. Nick Discepola: 411 DNA.

The Chair: We've had some discussion about when you have a list of primary and secondary designated offences, and obviously offences for which this won't apply at all, whether police and crowns will be tempted to overcharge in order to get someone they think may have done other offences. They'll overcharge them in the hope they'll either plead to the greater offence and they'll get to bank them, or knowing there's a threat that if they bank them they'll get a plea to a lesser charge.

The reverse has also been suggested that someone like you, Mr. Battista, might say “We'll plead to the lesser offence, but don't bank him”.

I've been struggling through the list of primary and secondary offences and don't see the continuum between them that would allow that. I've never seen a manslaughter charge reduced to criminal negligence causing death. You see murder reduced to manslaughter, but I just don't see the continuum there that would make this an ongoing problem. But maybe I'm too far out of it now in terms of my experience. Have you turned your mind to that?

• 1730

Mr. Giuseppe Battista: I have to be honest; it's not something we particularly address. Our concern with the list is that it is always being extended. It starts off with several offences that are particularly denounced at a certain period, and then every amendment that follows just keeps extending the list.

Our approach was one that would have allowed a lot more discretion to all involved and that would cover a little of what you're concerned with. The reality is that in a negotiation, people can be very imaginative. The problem there is that when the law is too rigid, people have to find imaginative ways of trying to apply it in a humane fashion or not address certain concerns.

If, for example, it will mean a three-month trial if the accused is charged with A rather than if he pleads guilty to B and the case is not as strong as it was seen to be at the outset, well, then a plea bargain will be envisaged by all sides. That's reality, and there's no amount of legislative amendments you can make to deal with that.

What I would suggest, though, is that the more rigid the law, the more discretion is removed from the law, the more then discretion has to be applied by the prosecutors and the defence attorneys. That's where the discretion will take place. So rather than leaving it in the hands of the judiciary, all you're doing is moving it somewhere else, but eventually you're stuck with the problem.

Take the idea of the “three strikes and you're out” in the United States, and then you have the guy who steals a pizza. Well, the prosecutor is the one who's going to have to make the decision on whether or not he raises that card in the courtroom. So if you remove it from the judge, you're giving it to someone else, but you'll always have exceptions and imaginative ways of dealing with it.

The Chair: It's like an agreement not to prove the second impaired.

Mr. Giuseppe Battista: Exactly.

Ms. Anne-Marie Boisvert: Why not just stick with the idea of, for example, saying you can apply to a judge for a violent crime and then let him decide if it needs a warrant? Within the list we can see that the idea is violent crimes and crimes with a sexual component. That's basically what is in the list. But manslaughter is there, and manslaughter covers situations ranging from a quasi-accident to a quasi-murder. You can be found guilty of manslaughter because you had a quasi-accident hunting.

There are always problems with a list. Maybe what we should do is keep the main idea and just say it's possible to ask for a warrant in case of violent crimes or sexual crimes, and then leave the discretion to the judiciary.

Mr. Peter MacKay:

[Inaudible—Editor] ...where you would just make the application. But I wasn't clear from your answer about whether you were saying it's better left in the hands of the defence and crown counsel or that it should be with the judge upon application.

Mr. Giuseppe Battista: It should be with the judge, and the courts, as they have always done, will establish criteria. And then if the legislature is not satisfied a few years down the line, you can always amend; you can always intervene. However, you can also trust the judiciary to make those distinctions when it's a manslaughter, an involuntary act. If the person is not a danger to society the day after that terrible event but is nonetheless guilty, why would you want to put that person in the same bank as Clifford Olson, for example?

The Chair: There's the political problem of public confidence in the judiciary too.

Mr. Giuseppe Battista: Well, maybe you can ask yourself if you are helping the public gain more confidence by confirming to them that you should remove discretion from the courts. You can also look at it from that perspective.

The Chair: That's a good point, and when we have our national forum on confidence in the justice system, I hope you'll be back.

On that note, I think we'll rise. Thank you very much for your assistance.

The meeting is adjourned.