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 11, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): We're back and we're dealing with Bill C-3, which is an act respecting DNA identification.

From York University we have Dianne Martin, and Elizabeth Costa, who is a student at Osgoode. You're both from the law school. Good. We're dying to hear from you.

Professor Dianne Martin (York University): I'm assuming you don't have my paper.

Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): You assume correctly.

Prof. Dianne Martin: Then I'll go through that which you don't have and not worry about being unoriginal. I apologize. I was only invited last week and didn't get a brief together in time for it to be translated.

I'm here because I'm a co-director of something at the law school called the Innocence Project. It was established last September under my directorship and the directorship of another law professor, Alan Young.

We are investigating, with six students—and I have one with me—cases of wrongful conviction or possible wrongful conviction. Our mandate is factual innocence. We are looking for cases of folks who didn't do it, and we've been working on files since September.

I teach evidence and criminal law at the law school. Before I joined the law school I practised criminal law in Toronto for some 15 years. My colleague, Professor Young, also teaches criminal law and also has a background in practice, so we're fortunate in having a range of experience on issues of criminal prosecution.

The paper I've prepared starts with a quote, which I'll give to you because I think it sets the tone a little bit. This is from an editorial written by William Thorsell in the The Globe and Mail last fall. He said:

Something is seriously wrong in the system under which Canada investigates and prosecutes serious crimes such as murder. Too many times in recent years have the innocent been punished and the guilty uncaught....

Mr. Thorsell was moved to write that comment because of two incidents: the exoneration, after so many years, of David Milgaard in the midst of an inquiry into the wrongful conviction of Guy-Paul Morin, two events that followed the report on the bungled investigation of Paul Bernardo, one of the most serious serial offenders the country has ever seen. Of course, the failures in the investigation of Paul Bernardo mirrored the failures of investigation in the Morin and Milgaard cases. That's something, I think, we too often forget. When the innocent are wrongly convicted, the guilty are uncaught. For every occasion of an error where the wrong person is convicted, you find similar errors leading to the failure to apprehend the actual offender.

At the law school we are both working on files and conducting research into the causes of wrongful conviction, and I can tell you this is research that has not been undertaken in a serious way in Canada to date, except when attached to a royal commission. So we're learning some new things and I think being able to make some long-term contributions to the problem as well.

The question people ask most and first is how common is this problem. On the one hand, we would all like to think it is the rare aberration, the utterly one-in-a-generation occasion when a human system inevitably makes the odd mistake. On the other hand, I've heard it said and there have been published surveys that would put it as high as 20% or 30% of convictions. My research persuades me that it is certainly not rare nor an aberration, but it is not 30% of all criminal cases. We don't look at it correctly, and I think it's important to do that because it speaks to what DNA can do for us.

The cases that go wrong are the cases where we don't know who the offender is, the whodunnits. The whodunnit cases are actually quite rare in the criminal justice system. In the vast majority of cases that wend their way through prosecution the participants are very well known. The question is, did they do anything wrong? But who they are is not an issue.

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When the identification of the offender is an issue, you'll find quite a small group. Of that small group, I think it's fair to say that we are very prone to error.

Eyewitness identification evidence, which is crucial in a case where the assailant is unknown and a stranger is identified, is the most frail evidence known to the justice system. The possibility of it being correct in a case of stranger identification is actually quite slim unless all of the factors are perfect.

So that group of cases has an error rate well over 50%. Now that doesn't mean that convictions are 50% wrong, because there's other evidence to assist. But pure eyewitness evidence is extremely rare.

The next category of evidence that's well known to be fragile is confession evidence. The reasons for confessing falsely are legion, and the numbers who do it are surprisingly high.

The next in a serious group of frail evidence comes from people called jailhouse informants. They're used when there's no other evidence to rely on.

Then finally we have a category of just circumstantial evidence.

With this as the foundation for the proof in many cases of whodunnit crime, it's not surprising that we do get it wrong. That's where DNA evidence has been a revolution. Because of its accuracy in identifying trace evidence, it can overcome those terrible frailties of the other categories of testimony and evidence I talked about.

For that reason, we at the Innocence Project are very happy to participate in discussing the national data bank bill. We think we must pursue some initiative toward having a national data bank. We do, however, have some fairly significant reservations about the bill as it exists in Bill C-3.

Here's the first problem with the bill, in our view, and the first recommendation. The paper I gave you sets out four recommendations and five questions. The first recommendation reads:

It is recommended that the Purpose and the Principles of the Act be amended to reflect the urgent importance of accuracy in the identification of persons accused of crime and the importance to the administration of justice of exonerating the innocent as well as convicting the guilty.

It's our view that the new trend in legislation is to state a purpose and some guiding principles. I think that has been of value, for example, in the case of sexual assault offences. It is a guide not only to the legal system but to the community at large.

Our first recommendation is to recognize the twofold value of DNA evidence, which is really the first value: finding the truth. We wish to remove the idea of DNA evidence as a prosecution tool, return it to the realm of science, and support it as a tool for finding the truth.

In almost all of the wrongful convictions that have occurred in Canada, England in the IRA cases, and the United States, there has been a rush to judgment. There has been an urgent need to find someone to convict. Well-meaning, well-intentioned participants in the justice system blinded themselves to any other conclusion but that the body in front of them was guilty.

That's understandable, but it's wrong. We would strongly urge the committee to take another look at the drafting of the purpose and principles to put truth-finding as the first priority.

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We also recommend removing managerial control, at least, from a police agency. It is our view that something as important as a DNA data bank has to be governed by an independent, and transparently independent, crown agency.

A short section in the paper identifies what we've learned from science and forensic laboratories and their role in miscarriages of justice, and it's not a happy history. The Innocence Project has participated in a research paper for the Kaufman Inquiry that led us to Australia, England, and the United States in reviewing their experiences with wrongful conviction. In each of those jurisdictions, as in Canada, forensic laboratories—very frequently police-run forensic laboratories—have produced false or misleading evidence.

This isn't a campaign of perjury on behalf of forensic labs. It's a product of something well known to science, called investigator bias. True scientists engaged in seeking the truth use double-blind studies and other devices all the time to protect themselves from what they know to be a risk: investigator bias. Almost never do prosecution-run forensic laboratories have the same protections. They become an arm of the prosecution, and all too often that leads to results that don't in fact advance the truth, although they do in fact advance the prosecution.

Recently the U.S. Department of Justice studied two things. They examined DNA evidence as a tool for exoneration of the innocent as well as conviction of the guilty, and they did an assessment of the FBI forensic laboratory.

To go to the latter point first, the FBI laboratory has been famous worldwide as the penultimate forensic lab.

Two things came out of those two studies that are of importance to this committee. First, the rate of mistake in the forensic labs in the wrongful conviction cases that had been exonerated through DNA was extremely high. The Department of Justice was very troubled by the amount of misleading and inaccurate evidence coming out of forensic labs. Testimony was given and reports were written in a way that supported the prosecution theory. They recommended perjury charges in a number of cases, and there are ongoing investigations in a number of cities. There are at the moment 38 files of exoneration by DNA where that is occurring.

Secondly, they discovered that at the FBI laboratory, those same problems also existed. In fact the accreditation of the FBI lab is under question. Well, that's not unique. The forensic laboratory in England that did the forensic work in the IRA bombing cases has gone through its own revolution internally. They've had to come to terms with the fact that they presented misleading evidence and contributed to wrongful convictions there.

Australia has probably the best record. They went through their own horrible convulsions, because this is hard to deal with, that your best people are doing these things. Nobody wants to face it and it's a horror to discover. Australia went through it over the dingo baby case. They were extremely rigorous with themselves and brought in experts indeed from Scotland, one of whom was the man who came in and met and spoke with my students, to clean up their act and establish a scientifically sound and professionally based forensic service.

They and others now from around the world all acknowledge that if forensic science is to be scientific, it has to be independent of any state agency and of the prosecution or the defence. This leads us to say that the most significant forensic laboratory in the country, the most significant piece of material information about Canadians that any of us can imagine, a DNA data bank, must have independent management and auditing in order for us to be sure that the errors other countries have experienced and we ourselves have experienced in our Centre of Forensic Sciences are avoided.

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Recommendation 2 is framed—this is not great writing and I apologize—this way:

It is recommended that the Act be amended so that the proposed National DNA Data Bank is established and maintained by an independent Crown Agency separate from the Ministry of the Solicitor General and from any police service.

I'm not sure how you would create that independence. I'm not suggesting you have to move physical buildings and have laboratories parallel to those of the RCMP. It's more about the creation of an independent audit mechanism and a management mechanism.

Some of this has been drawn from the evidence that the Morin commission heard in December. I strongly suggest that this committee would benefit from the work of that commission and indeed from Justice Kaufman's report, which is due at the end of March. The evidence was in fact overwhelming about serious errors at the Centre of Forensic Sciences contributing to that particular wrongful conviction. We don't have to wait for Justice Kaufman to say so. The Centre of Forensic Sciences has admitted that and has undertaken significant changes of its own already.

So that's before us, and it would be wise and perhaps helpful to your work to be sure you have that in front of you.

Following from the errors that we know science labs have made, it's not just that they aren't independent, it's that they have no involvement with or accountability to either the community of science or the other most interested party in a criminal investigation, the accused.

The Centre of Forensic Sciences, for example, did not do work for the defence. Any work they did for the defence they handed over to the prosecution. They had no duty to provide truthful or timely reports to anyone but the prosecution. That narrows your vision. That narrows your sense of accountability to something more important than winning a case.

Our third recommendation is that the act be amended to provide for access by the defence to the testing and analysis resources of the data bank, which I think is necessary even if you don't go so far as to make it independent. The bill as it stand provides for no access by the defence—none. It's not in there. I think that's a serious oversight. Secondly, we recommend that the act be amended to provide for an annual external audit of practices, procedures, and new technology.

This third recommendation, I think, augments the second one, but it's also an alternative. It goes not quite so far as an independent agency but achieves some of the same goals, so I'll repeat it.

The first point is to ensure that there is defence access to that material and technology. In fact, you could be representing someone charged with an offence and believe that trace evidence exists that would exonerate him, perhaps from another case, but there is no avenue to obtain that information. If the prosecution doesn't want to bring forward the issue of trace evidence you may not be able to exonerate yourself, even when the data bank has the material.

So the points here were defence access and an annual external audit, which I would strongly recommend. An audit need not reveal confidential information. It need not breach any of the duties to either privacy or the prosecution or the courts, but it can ensure Parliament and the public that we're not heading toward the errors that we've seen in other countries, and indeed that we've seen in Ontario.

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It also would ensure that this new service stayed on top of the rapidly changing technology. Not everyone is aware, although I'm sure you're aware—

The Chair: Don't count on it.

Prof. Dianne Martin: —of how DNA technology is changing and advancing at an exponential rate. This is rocket science. We can all understand a fingerprint, a greasy smudge on a glass, and how to get it. That's okay. But that is not how one learns about and understands DNA. It's much more difficult than that. As the testing gets more sophisticated, the technology gets really difficult to understand.

The most recent...I forget the initials, so I'm no better at this than anybody else. It will replicate a tiny segment.... PCR is the name of the technology used in the Morin case.

Mr. Nick Discepola: What does it stand for?

Prof. Dianne Martin: Good question.

Why is that so important? It's magic. It's amazing. I will have left a cell, undoubtedly, on this glass by drinking from it. That would produce identifiable DNA. That's rocket science. That's magic.

What's dangerous about it, and what needs to be understood about it, is how readily contaminated that is. Bete could put her finger on top of that glass. Now we have a blended DNA that would produce an inaccurate or goodness-knows-what result, because it is so sensitive.

As we're speaking, science is working to both clean it up and refine it further, but if this new data bank isn't absolutely at the cutting edge of this technology, we run the risk of relying on the science, saying “It's magic; obviously Joe Blow is the guy, there's the DNA”, when it's every bit as mistaken as the evidence that wrongly convicted David Milgaard, and wrongly convicted Guy Paul Morin, and wrongly convicted the very much less attractive, less well known, less articulate and less interesting clients that the Innocence Project has. We have the folks who don't have moms like Joyce Milgaard. They are the folks who just rot away, forgotten, some of whom, we know statistically, are also innocent.

We have to stay cautious about the science, because what was a miracle today is voodoo tomorrow. An external audit is one of the ways for the rest of us to know that the data bank isn't sitting on some kind of mythical reputation or laurels undeserved.

Finally, and this is our last point, obviously David Milgaard was incredibly lucky. The sample that was tested had been kept. There is nothing in Canada, in law or in regulation, that guarantees or ensures that exhibits from major crimes are retained. It's pure luck.

At the moment, there is an effort to locate and then retest, if possible, the samples from the famous Stephen Truscott case. The Innocence Project has been helping in a very small way with that. They'll be there or they won't be there. They'll be tested or they won't. It's a matter of luck.

Of course, that isn't good enough. Now that we know that some of the folks we're convicting today will turn out to be innocent and some will turn out in the future to be provably innocent as we learn more about all of things we're learning about, it would be criminal if the exhibits that could establish that weren't retained. Not keeping them 10 and 15 and 20 years ago was absolutely understandable; today there is no excuse.

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Thus our last recommendation is that the act should be amended to include provision for the safe retention and storage of trace evidence exhibits in all cases of conviction for designated offences, not all cases. We've talked about it within the project, that there be a shorter list of mandatory retention, and then beyond that, an onus on the accused person to make a request for retention. Indeed, only they will know if it's important to retain. It will be after they're convicted. It cannot possibly harm them if they don't ask. No one will think the worse of them; they're already convicted.

But I would think it shocking if, for a less serious offence, someone who was indeed innocent couldn't ensure that the exhibits were safely retained so that the possibility of that exoneration was not lost. As I said, we now know it's possible. There have been some 80 people cleared on death row in the United States who would be dead but for this kind of re-examination. We now know that it can be done, and in my view, the duty is inescapable that it be done carefully and safely.

So that's it.

The Chair: Just before we—

Prof. Dianne Martin: There's a student perspective also.

The Chair: We'll hear from Ms. Costas in just a minute.

I know everybody here is dying to ask questions, but there are a couple of things that you could clear up initially so that we understand how you're being funded and how you operate. I think you said there are two faculty members and seven students. Could we know a little bit about that? Do you go to court? Do you have scientists? How do you deal...?

Prof. Dianne Martin: That's actually what Elizabete is going to talk about.

The Chair: Good.

Prof. Dianne Martin: I'll fill in anything that is missed.

The Chair: Okay.

Ms. Elizabete Costa (Student, York University): We're a group of six students. We just started last September, as Dianne said. We're supervised every step of the way by Dianne and by Alan Young. It's a clinical program and we're doing it the whole school year.

Right now we're working on five files between all of us, and our goal is to establish factual innocence—not just whether there is a reasonable doubt that someone is guilty but actually factual innocence.

We receive requests from people who are in jail right now. We have only one client who is out of jail, and we trying to acquire compensation for him.

We get the case; we do all the media searches that are necessary, contact witnesses if they're still alive—it's usually only for serious crimes and long jail terms—and private investigators who have been involved. In a lot of these cases they're working pro bono for years and years after the conviction. If there's any fresh evidence, we would go and gather it for sure. If there was any DNA evidence at the time, we would try to hopefully be lucky that the police kept it, and retest it. That's basically it. It's like reopening a file from beginning to end.

The Chair: Who funds you?

Prof. Dianne Martin: The funding at the moment is the law school, in the sense that I'm a full-time member of faculty, as is Professor Young. The law school has given us an office and a computer, and we have a small grant from the Donner Foundation to get started. We are going to be looking for funding.

The most important need for funding will be for summer students, to keep working over the summer, and for court costs as they get worse. So far, courts have been extremely good about assisting us to get in and look and read without great expense. Helix Biotech, a private DNA laboratory in B.C., is giving us free DNA testing, which is a tremendous bonus. We've been meeting with metro police and with representatives of the Ontario Attorney General to establish some protocols for access to files and ways to do those things less expensively. The Law Society have insured us, because Professor Young and I are working pro bono. Any court appearances that become necessary will be done primarily by Professor Young, with the students doing the research.

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The students get credit for the work—nine credits out of a necessary 30. I think they need more; they think they need more.

Ms. Elizabete Costa: Absolutely.

Prof. Dianne Martin: We can't help it, though. We designed it as a three-year pilot, because we didn't know what the demand would be and we didn't know how long each file would take. We're learning as we proceed.

The students have adopted as their slogan a line from a Bruce Cockburn song: “Kick at the darkness until it bleeds daylight”. Indeed that's what's done on a file. Every fact is shaken until it squeaks.

They're as conservative a bunch as I've ever worked with on the question of innocence—these students are from Missouri—and that's very important. Everything looks either obvious or not obvious at first blush, and when you re-examine a case like the ones we're working with, you have to set aside all those preconceived notions, start at the beginning, and see where it takes you.

It's the most rewarding teaching I've ever done.

The Chair: It sounds great.

Mr. Ramsay, who is not unfamiliar with these projects himself, has a few questions.

Let's start with about eight minutes, Jack. I know you have a special interest in this.

Mr. Jack Ramsay (Crowfoot, Ref.): Yes. Thank you.

I want to thank you for coming. It's just amazing, what you're telling us.

Even though we're developing this new tool, there's potential for a miscarriage of justice. Because of the nature of the DNA evidence and the weight that courts give it, the DNA evidence alone, if it can exonerate, can also convict.

Prof. Dianne Martin: Yes.

Mr. Jack Ramsay: So you may have some real problems on your hands in the Innocence Project if we have mistakes being made by law enforcement agencies, forensic scientists, or crown prosecutors, as we've had in the past. I want to ask you this before I get into the recommendations you have made. How do we protect, or is it possible to protect, the individual from embracing an opinion or a conviction of mind that they just absolutely refuse to change?

The reason I say this is if we look at the Donald Marshall case, the officer who investigated him insisted until the day he died that Donald Marshall was guilty, even though someone else was convicted of that offence. When we look at the latest one, the Guy Paul Morin case, the prosecutor, on the witness stand during her first day on the inquiry, insisted that Guy Paul Morin was guilty. In the Milgaard case, the Saskatoon police official expressed a similar attitude. And in the Wilson Nepoose case, which I was involved in, it's the same thing. The police officers and others involved still insist that Wilson Nepoose was guilty. Now, in the Nepoose case, we did not have that kind of irrefutable DNA evidence, but the symptom is there, and that's the toughest thing we're going to have to battle.

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How do you deal with those kinds of cases where the people you have to deal with are absolutely ironclad in their opinion that the person is guilty? If that's what leads to these miscarriages, then at what time during the process of investigation and evidence evaluation does the mind close to all other evidence of a different opinion, that would at least point to a different opinion? Although it's a little bit off the bill, do you have any comment on that?

Prof. Dianne Martin: It's certainly something I've experienced. You described it very vividly. That is a tremendously real problem. My own view is that it's time to actually respect the presumption of innocence rather than view it as a trick and a joke, as indeed all of us do, and that includes defence counsel who chuckle about never having had an innocent client. We're all afraid of having an innocent client.

The Chair: I've never had a guilty one—never.

Prof. Dianne Martin: Do you know what I mean, though? It's something we're cynical about, and we reward convictions. We also have been fueling and have been fueled by an exaggerated fear of crime. We don't want to appear soft on crime, so ideas like the presumption of innocence are seen as a shield for the guilty rather than as a fundamental principle of logic, let alone fairness. We've let it be a game rather than a matter of truth and justice. So I think we do a lot of rethinking and retraining of the participants, but I think as well we do things like remove key scientific investigation from the adversarial realm.

Mr. Jack Ramsay: I want to ask you about that.

Prof. Dianne Martin: The adversary system, in my view—and I've both taught and practised in it—is not a very good device for finding the truth.

Mr. Jack Ramsay: If the government did move the forensic lab outside of the RCMP and made it a separate crown institution, as you've recommended, how do you maintain the separation of opinion and attitude?

Prof. Dianne Martin: I think you view it as a matter of science, not as a matter of advocacy and not as a matter of proving a case. The two are anathema and forensic science should not be an arm of the prosecution. It should be a branch of science. We have the university labs, where everybody turns...Dr. Blake from California, who participated so valuably in Morin; the University of Michigan at Detroit has a number of laboratories that are used all the time by folks needing forensic assistance; all of the university laboratories who have the goal of doing the research—and it's almost a by-product that they do testing that happens to advance somebody's litigation goal—are universally acknowledged as giving us the best information you can get. It's as if we all know that. We just don't admit it. When we're in a really tough bind we turn to one of those laboratories to get the truly objective answer rather.... As I said, it's almost as if we all know that.

I think you can try to replicate it, because my fear is that we won't be using this tool to exonerate the rest of the either small number or relatively large number—who knows, but there are more—of cases of the wrongly convicted. And there will be some more as we move along. We may slam the door shut incorrectly on the basis of DNA.

There was a case in London, Ontario, just a very short while ago where the Centre of Forensic Sciences mixed the samples. So what was tested was a blend of the accused and the crime scene, and they said, “Oh, it's a perfect match.” Fortunately, it was discovered. That's not because they're terrible people; it's because it happens. So I agree that you're asking the right questions.

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The Chair: Go ahead, Jack.

Mr. Jack Ramsay: Turning to your recommendations, recommendation number three, would not the requirement for full disclosure satisfy recommendation three?

Prof. Dianne Martin: I think it would help a great deal.

My vision would be an independently managed, independent laboratory with full disclosure and an external audit. I would be comforted by a laboratory administered by the Commissioner of the RCMP with full disclosure and an external audit.

Mr. Jack Ramsay: That's fine, thanks.

The Chair: Thanks. That was excellent.

Richard Marceau. We've got a bunch of legal beagles today.

[Translation]

Mr. Richard Marceau (Charlesbourg, BQ): Good afternoon, and thank you for coming. I have found your presentation exceedingly interesting. I wish the law school I attended, whether Laval or Western, had had this type of project. The years I spent in law school would have been that much more interesting.

I have a few questions to ask. First of all, the fact that DNA was something extremely personal was mentioned. You can find all kinds of information by studying DNA. Nevertheless, in your third recommendation, you're saying that the defence should have access to the testing and analysis resources of the DNA data bank.

This is a problem, because it is important to keep this type of information confidential and to limit access to very few people, because if it were available to a wider number of people, someone might use it for less noble or honest purposes than those envisaged for the data bank.

How can you reconcile removing the data bank from the adversarial system and respecting the right to privacy as much as possible?

[English]

Prof. Dianne Martin: Thank you. I think it's a good question. I would distinguish between using the data bank, to have access to the data bank to exclude a person, with learning all about the reasons he or she was excluded. If someone else's DNA was at that crime scene, I, the person wrongly accused, don't need to know who it was. I don't think I should know who it was. My interest and my right of access to the data bank is to establish it isn't me. Once I've achieved that goal of establishing “not me”, then I think my right of access ends and the right of privacy of whoever left the trace evidence there begins. There could be no reason for me to cross that line.

How you would deal with the police interest, of course, is different. But we have given the police the right to access the data bank in any event, so the fact that they chose not to do it in a particular case but did because the defence pushed it and triggered police interest doesn't pose a problem. The police always had the right to access the data bank to see if there was a suspect in there.

My scenario had a case where the police had chosen not to or the prosecution had chosen not to access the data bank. The defence is saying, I didn't do it; there must be a way for me to prove I didn't do it. I think they should have the right to access that source of information to see if they could prove they didn't do it.

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I don't believe that gives them the right to know anything at all about who....

[Translation]

Mr. Richard Marceau: Therefore, in practice, the only information accessible to the accused would be whether his DNA is present or not.

[English]

Prof. Dianne Martin: Well, they would clearly get to know that, but no, I would give them more access than that. They would get to use the data bank. They would get to say, this exhibit was found at the scene of the crime I have been charged with; the prosecution has not tested it; you will test it, and if it isn't me, then I'm out of here. What they don't get to find out is who it is, because why would they have the right to know that?

But at the moment, you see, they couldn't do that.

[Translation]

Mr. Richard Marceau: Thank you. You mentioned an external audit, and I'm wondering whether we could give the same external audit power to the privacy commissioner. He could ensure that the information in the bank remain confidential.

[English]

Prof. Dianne Martin: I think that's a very good idea, yes. Making use of an office already mandated to achieve that makes a lot of sense.

The Chair: You're presumed innocent.

[Translation]

Mr. Richard Marceau: Do you believe the present DNA bank should remain where it is presently located, in the buildings of the Royal Canadian Mounted Police? You know that legally, it is always wise to be not only independent, but also to be seen to be independent. Would you move this bank to some other location so that not only it would be independent, but also it would be perceived as being independent?

[English]

Prof. Dianne Martin: If I had my wish, it would be physically separate as well as managerially and intellectually independent. There are always trade-offs, and I would trade off physical independence for intellectual and management independence, and these machinery expenses.

[Translation]

Mr. Richard Marceau: Independence is one of my favourite subjects, but this is another matter.

[English]

The Chair: Sneaky guy. I would have liked to have been crown against him.

Prof. Dianne Martin: Well, stay in Canada and we'll give you intellectual independence.

[Translation]

Mr. Richard Marceau: Regarding the general principles in the bill, you mentioned several additional principles, for example the accuracy of proof, exonerating the innocent, convicting the guilty, and so on. Do you believe that the right to privacy should be added to the list of general principles? And shouldn't that be added in bold letters, in italics, etc.?

[English]

Prof. Dianne Martin: Yes, I do. In the paper I've said in brackets at some point or another that there are privacy interests that are very important but that we didn't address because it wasn't our mandate. But you're absolutely right, they are as important as the presumption of innocence goals.

[Translation]

Mr. Richard Marceau: The bill mentions keeping the samples, even after the trial. I see no reason to keep a sample, a hair, saliva, sperm, blood, whatever, when the information has already been gathered. Don't you think that the legislation could change in 10 or 20 years, and that someone could decide to start testing left and right without asking for consent?

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[English]

Prof. Dianne Martin: Yes, but we face that problem now with, for example, fingerprints. Once your fingerprints are on file, they can be accessed and re-accessed and re-accessed. This is much more sensitive, but it is also.... Now I'm thinking on my feet.

Why I wanted the material retained is that that's the source of exoneration for someone wrongly accused. The reason those who are concerned about convicting the guilty want it retained is that it's a second chance to make sure we didn't miss any on the first go round. We all remember that Clifford Olson had a record for break and enter and nothing else. So the serial killer, the very rare but very frightening criminal, is posed as the justification for many things, and I don't think it should be.

But without the retention of samples in an orderly way, the possibility of using this technology to its most full is simply not there. If trace evidence wasn't kept on an orderly basis, I'm not sure there would be any point in having a data bank at all.

Certainly there's a case to be made not to do this at all. I didn't address that. There is a case to be made to not do it at all.

My absolute preference would be to maintain exhibits from every conviction and have the technology to permit DNA testing of them at any point without necessarily creating a data bank at all.

Mr. Richard Marceau: Merci beaucoup.

The Chair: Thank you, Mr. Marceau, very much.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you. I'm going to pick up just on that exact point. We have talked about maintaining exhibits and the protection of privacy. Take the case of an innocent bystander, let's say, who is at the scene of the crime, and whose DNA samples can be taken from the exhibits. My concern would be that if the samples are tested and the DNA identification index is obtained for that person who is the innocent bystander, and the substance is kept on file indefinitely....

Prof. Dianne Martin: Oh, I see what you mean.

Mr. Peter Mancini: It's a serious piece of information to be floating around.

Prof. Dianne Martin: Oh, yes.

Mr. Peter Mancini: Would I be correct in interpreting, when you say we should maintain the exhibits, that you mean we should not necessarily test them all until there might be a need to do that some time in the future?

Prof. Dianne Martin: I was speaking more narrowly than that. The exhibits I am urging retention of are the exhibits used to convict Mr. Morin and the dress of the nurse who was raped in the David Milgaard case. It was pure luck that the dress was kept. It should not be.

That said, I would also say that all of the information, all of the exhibits that were gathered in that conviction should be kept, but I wouldn't say they should be profiled. I just want the exhibits kept. I don't want the profiles done because I think you're right—that produces terrible risks. Does that...?

Mr. Peter Mancini: That's exactly my concern, and I'm glad to hear you say that, because I agree with that.

Prof. Dianne Martin: Well, as I said, I'm not too sure you have to have it if you're keeping your exhibits properly.

• 1635

Mr. Peter Mancini: Those of us who practise criminal law know that there is the independent forensic scientist we bring in, the psychiatrist we bring in who is independent, and then we also know there are the hired guns that we bring in who see things in a slightly different light depending on who's paying for the research. Is there potential for the rise of I think the group you mentioned who's funding you, Helix—

Prof. Dianne Martin: Well, they're not funding us, but they are giving us free DNA.

Mr. Peter Mancini: Okay, who is giving you free DNA.

Is there potential for the rise of the private groups so we then run into the same problem, the accused who has the most money who can afford to bring in the evidence accordingly?

Prof. Dianne Martin: Of course.

Mr. Peter Mancini: Is there a way to guard against that?

Prof. Dianne Martin: Yes. It should be a crown agency.

I'm not recommending that we have a flurry of little competing institutions, “DNA for sale”. That would be horrifically dangerous. But I think the model exists for an independent crown agency.

The British model is an almost fully independent—most people would say fully independent—agency. The Australian model is within the federal police but is independently monitored. The third model is the university-based model.

Mr. Peter Mancini: The potential I see for universities is that it can be a source of funding. But we could then run into the problem of having the universities compete for that funding.

Prof. Dianne Martin: Yes.

I think we don't yet know what the volume is likely to be. The attraction to the university-based model is that it becomes part of research. It becomes part of advancing knowledge. That's the goal. The goal, and the product, is not a conviction or an exoneration; the goal is the truth, and as much as is possible that's the model that will protect us. None of these work perfectly.

Mr. Peter Mancini: I agree.

An interesting case could be made for the accused to request the testing, because there may be times when the accused would like to have the testing but not allow the crown to see it. So the disclosure argument may not work, in the sense that the accused may want to know the information.

I am interested, and perhaps we can talk about this later or perhaps you can give me some references. When you began your presentation, you talked about forensic labs and the rate of mistakes that were made. This is a real eye-opener for me, because I may be one of those people who thinks, well, the DNA testing is there; the DNA says the guy matches up; it must be conclusive evidence.

Prof. Dianne Martin: Yes.

Mr. Peter Mancini: Are that many mistakes made?

The public perception is that it is almost foolproof, that it will be the end of unfair convictions. I guess you're telling us that's not even nearly accurate.

Prof. Dianne Martin: If we use the same model as we've got operating now, a model that has produced a range of wrongful convictions based on bad science, junk science, mistaken or eager-to-please forensic witnesses—if we use that model and just plunk in DNA as the technology, then the output will be the same. It will be as wrong as it currently is.

I'm assuming you're accepting the usual proviso. Many cases go through beautifully. Much extremely good work is done.

It is not as good as we've all assumed, and we have recently learned that.

With that experience, it would just be criminal not to apply that caution to the most powerful and invasive technology that the human mind has yet entertained.

We're talking about cloning, for goodness' sake.

Mr. Peter Mancini: Yes, I know.

Prof. Dianne Martin: That's a little bit science fictiony, but this is very powerful technology.

The Chair: Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): The purpose that you indicated is to find the truth. You have suggested that for serious offences we should retain the samples of victims and the offender indefinitely.

• 1640

We can't look in a crystal ball and say that there will be technology hopefully that may improve and that we'll find those people innocent. What do we do in the situation such as in the cases Mr. Ramsay has suggested? Notwithstanding the cases of Marshall, Milgaard, and Morin, who were found not guilty because of DNA testing, say that this advanced technology, whatever it is, then in fact acquits someone who is in fact really guilty. What do we do in that situation?

Prof. Dianne Martin: Well, the lawyer in me says nothing.

Mr. John Maloney: The crown in you says...?

Prof. Dianne Martin: It think I would still say nothing. Although it may lead to something that is long overdue. It may lead to a move away from an adversarial game, theory-based system of criminal justice into more of a truth-seeking mechanism. If all those changes occur, then there would be room for truth to be always the goal. That might in fact reopen a case of a conviction that was closed.

But consider the model that governs criminal justice in Canada now. It's a contest, and he who has the best case wins. The contest is not always fair and even, but it has a result that so governs everything that we leave the acquitted as acquitted.

If we want to look at reopening both sides of the equation, I think that would be an interesting and important exercise, but we'd then have to look at reopening the whole thing. We'd remove the games from both sides of the table, if you know what I mean. I think it's true to say that we are also acquitting the guilty as we convict the innocent. We're not very good at the whodunnit case. We simply are not good at that.

Mr. John Maloney: Getting back to your specific project, how did you choose the five cases or files that you have? How did they come to be?

Prof. Dianne Martin: Elizabete, do you want to talk about that?

Ms. Elizabete Costa: We received letters from people who were in jail, except for one of our clients, who's not in jail at the moment. The letters were claiming innocence, which is our number one point. If someone is just saying their case wasn't strong enough, there was reasonable doubt, or whatever, they don't factor in highly for our consideration.

As for the letters, sometimes they send us the facts and we contact the lawyers right away. We get information such that immediately the bells go off that there is something wrong. Either there was a jailhouse informant or it was purely eyewitness testimony, and that's basically it.

In one of the cases—I'm lucky that it's my file now—a man had a chance 12 years ago to be paroled. He won't be paroled. He's in jail, but he will not say that he committed the crime and that he's rehabilitated and remorseful. He'd rather stay in jail and continue to claim innocence than give in.

Mr. John Maloney: This is a three-year project. At what point do you think you will come to a conclusion of perhaps these first five cases? How long does this whole procedure take?

Prof. Dianne Martin: One student collects everything they can on a file and does a summary. They hand that summary to another student for their assessment. That's for sort of a check. Then there's a meeting of all of us to decide whether there's a case to inquire into. So that's a pretty high standard to even start working on the case.

Ultimately, we'll make applications under section 690 unless we can persuade the minister to get rid of that section. But currently, we'll make applications under section 690 for a pardon.

So a couple of cases are very close to that already. A couple are going to take a very long time.

In the United States, the Innocence Project only does DNA re-examination cases. There are so many that twenty students a year can do nothing but DNA re-examination cases. That's their bright line, just to manage the caseload. We're not doing that.

• 1645

Where you can retest, they go very quickly. Two or three will have results in a few months, yes or no. The other two are “take every fact and shake it”, because they are going to be the long, slow route.

The Chair: Mr. Discepola.

Mr. Discepola is the parliamentary secretary to the Solicitor General.

Mr. Nick Discepola: And I'm not a lawyer, so I have no clients, either innocent or guilty.

An hon. member: Quit bragging.

The Chair: But he did live in Saskatchewan.

Prof. Dianne Martin: These things all speak well for him.

Mr. Nick Discepola: You have referred to contaminating evidence at the time of gathering the evidence. Are you saying that if a DNA sample has been contaminated it could yield erroneous identification of another person, or would it just give you an erroneous analysis or profile that won't match up with anybody?

Prof. Dianne Martin: As I understand it, the latter is more likely. But as the science changes and advances, we don't know where that's going to go. At the moment a blended sample just produces too much DNA information, so it doesn't answer anybody's questions. But I don't know where this is going to go.

There is a risk of contamination limiting the markers, so a scientist is able to say, although many of the markers on this bar were contaminated, these three allow me to reach an opinion. Then we're back into offering of subjective opinion about a match, and that could lead to an erroneous conclusion.

Mr. Nick Discepola: The whole basis of this database is to try to create a sample size large enough that you can have computer hits on it.

Prof. Dianne Martin: I know.

Mr. Nick Discepola: If we're going to be restrictive—and we have had two witnesses now who have always been very critical of the use of it, and in essence of restricting the sample—then I'm wondering whether there's any benefit to it at all. If you see some of the results in the United States, 50 or 60 or 70 cases have been solved. In Canada, if we get 20 or 30.... If we get one I think it's worth while, personally, especially if it's innocence that's proven.

Where is the legal hang-up in trying to create a sample as large as possible? In your testimony you even implied that the evidence gathered at the crime site should not be tested, just the samples and the evidence kept. I have a hard time understanding that one also. Why shouldn't we have the crime index as up to date as possible, with the latest technology possible, the latest samples and profiles generated from that technology possible, so we have a good, clean database?

Prof. Dianne Martin: It's not unlike the question that asks, why don't we fingerprint everybody? I'm not being smart-alecky here. If we had a DNA sample and a fingerprint from every person in Canada, there is no question we would increase the accuracy of some of our goals. We would track folks more accurately. We would more accurately identify them when they made claims for benefits. There would be a lot of things. But we would also give what to me would be extraordinarily unacceptable power over us—

Mr. Nick Discepola: I'm not talking about that. I'm not talking about taking samples from criminals.

Prof. Dianne Martin: But you see, the logic is the same. The perfect database is everybody here.

Mr. Nick Discepola: No, I'm talking about the crime index.

Prof. Dianne Martin: I understand you, but I'm saying the perfect index, the perfect database, is all of us.

Mr. Nick Discepola: Yes, I agree.

Prof. Dianne Martin: So now the choice is that it isn't going to be all of us, because that's absolutely too intrusive. No one should have that access of knowledge or power over a fellow citizen, period. That's clear. So now we ask, how do we choose? Where do we draw the line? Well, the cautious person who says power corrupts and mistakes are made draws it very narrowly. The keen-on-law-enforcement person gets closer to saying, but let's get the perfect database. I say the road to the perfect database is paved with abuses of power and with too much risk, both of invasion of privacy and of the kinds of mistakes human beings have been making for a long time.

• 1650

I believe we have all agreed that we have to draw the line. I advocate for drawing it very carefully and very narrowly and admitting that it is no longer the perfect database. But that's because we don't want the perfect database in our country.

Mr. Nick Discepola: But the imperfection would be that you don't get a hit, not that you erroneously convict someone else.

Prof. Dianne Martin: I think we misunderstand how our crime control and law enforcement is done. We convict and process through the courts something like 3% of the people who commit crimes. We are so far from dealing with everybody that it's a cruel trick on the public when we talk about improving law enforcement. The dark figure is between 80% and 95%; that's the unreported or the reported and unsolved crime. So who we're already focusing on is that 3%.

I think we have to acknowledge that we're already pointing a lot of resources at a very small group of the public, and do so with great caution. Law enforcement isn't what makes us safe in Canada; it's Canada that makes us safe.

The Chair: Thanks a lot.

Mr. Cadman?

Mr. Jack Ramsay: Do I have a dandy!

The Chair: You're going to let Jack speak? Because I'll just gavel him and let you....

Go ahead, Jack.

Mr. Jack Ramsay: You said that we process 3% of those who commit crime? The next time a reporter calls me and wants me to comment on the decrease in crime, I'm going to refer him to you.

If we only process 3% and the data we have are what determine whether crime is going up or not.... It's what is processed through the system, and if you're saying we only process 3%, then we have a crime problem that is far greater than Statistics Canada is telling us about.

Prof. Dianne Martin: No. We have an almost non-existent crime problem. We have a perception problem and we have a law enforcement problem. We think that crime...crime is something that somebody could define as a crime. I can increase your assault rate tomorrow. I can say that every push, every shout, and every “get out of my way, you idiot” that occurs is now going to be dealt with through the criminal justice system, and I can give you a crime rate of violent crime that has increased 100% in a day.

The Chair: Charles Harnick's already done it.

Prof. Dianne Martin: Yes. I can also just flip it and say that we're going to let the community deal with this behaviour, that we're going to let parents and neighbours and communities deal with rudeness and pushing kids. And I can't erase it in a day. The point is that with respect to our behaviour amongst ourselves, our cheating on our income tax, our insider trading, and our failure to use the blue box—whatever the conduct is—the law enforcement piece of it is really small.

Mr. Jack Ramsay: Of course, that wouldn't—

Prof. Dianne Martin: Like 3%.

Mr. Jack Ramsay: —hold up with murder because we know.

Prof. Dianne Martin: Exactly. Homicides are one of the best to use if you want to measure rising or dropping crime rates because we don't miss too many.

Mr. Jack Ramsay: Okay. I want to ask you a question about the bill. I'll have to read the transcript of what has been put on the record here because I think I'm getting mixed signals and that may not be your fault. It may be what I'm hearing here.

I want to ask you this. When Milgaard was convicted it was before DNA. Fisher was also convicted at about the same time, afterwards. The bill allows the taking of DNA samples from those who have been convicted, but only in two areas: those who have been designated as dangerous offenders and those who've committed two or more sexual offences.

• 1655

Coming from your vested interest, which is to prove David Milgaard innocent, if that happened today and this bill had been passed, we would not be able to take a sample from Fisher because he has been convicted of only one sexual offence. So we would not be able to clear Milgaard as a result of getting the real individual. We might be able to clear him negatively by testing to prove that he is innocent.

Would you prefer to see that section of this bill reduced, eliminated, increased, or remain the same?

Prof. Dianne Martin: I have a couple of corrections first. Fisher's conviction record was for more than two, so we could have taken a sample; he would have fit.

Mr. Jack Ramsay: That was hypothetical.

Prof. Dianne Martin: But assuming it was not taken, my first goal would be to clear David Milgaard, because I think the conviction of the innocent is a double wrong, not a single wrong, and we would have cleared David Milgaard without the Fisher DNA. We wouldn't have needed to convict Fisher to clear Milgaard.

I understand the law enforcement interest in being able to solve the case.

Mr. Jack Ramsay: The unsolved cases.

Prof. Dianne Martin: Exactly. Once I'm no longer saying I'm not sure we should do this at all, which I think is a viable argument, if we were going to do it then I think the balance was not badly drawn.

Mr. Jack Ramsay: Then you think it's all right that—

Prof. Dianne Martin: On the point we were making of where you draw that line, I thought it wasn't badly drawn.

Mr. Jack Ramsay: But we've entered the room and we're saying we can retroactively take DNA samples from these people, but they're from a small group. You're saying we would not be able to take samples from Clifford Olson, Daniel Gingras and Allan Legere—there's a whole list of them here. Of course, Clifford Olson was not only convicted of murder, but he raped those children. So his DNA may be found at the scene of unsolved crimes.

So why would we not, inasmuch as we've entered the room, broaden that so we could take a DNA sample from the likes of Milgaard, or people who have committed violent offences who may have left DNA evidence at the scene?

Prof. Dianne Martin: I think it's a good question. You're again asking where we should draw that line, and once we've assumed we will do it, where should we stop?

Mr. Jack Ramsay: We draw the line at sex offenders and murders.

Prof. Dianne Martin: I understand. The question is, where does that intrusion stop once we've started and assume it's a legitimate thing to do?

Mr. Jack Ramsay: We're doing that.

Prof. Dianne Martin: Yes, I understand.

Mr. Jack Ramsay: The bill is saying it's limited to those two areas. There is pretty sound rationale to move beyond those two areas—

Prof. Dianne Martin: I know there is.

Mr. Jack Ramsay: —in the interest of solving the unsolved crime.

Prof. Dianne Martin: I'd want to know—and I don't know—more about the implications of this, because I can see doing it in a grandfather clause way for a precise list of folks. I'd even ask for their consent first and see if we could get it. Given how grandstanding some of those folks are, we may well get it.

I would be very troubled by going forward into the future with that as a proposition because I'm concerned about just how wide we're going to cast the net to obtain the genetic code of ourselves and our fellow citizens. It's not a fingerprint.

Mr. Jack Ramsay: Okay, but are you happy with the bill as it is now?

Prof. Dianne Martin: On that issue, I didn't particularly think about it.

Mr. Jack Ramsay: Okay.

• 1700

The Chair: Thanks, Jack.

I want to thank both of you so much for coming and taking the time. I know we gave you short notice.

Mr. Peter Mancini: I have a quick question that we've agreed on.

The Chair: Oh, look at these guys. I'm in a speech now.

Some hon. members: Oh, oh!

The Chair: All right, go ahead. Have you decided who's going to ask it?

[Translation]

Mr. Richard Marceau: You are saying that there are problems, even in the FBI lab, which is supposed to be the very best. For the committee's information, I would like to have a copy of the document where you found this information.

Secondly, you said that the British lab is practically independent, and that in Australia, the lab is part of the police department, but it is... Do you have any documents explaining a little bit how this works, and how independent these two data banks are? This would be useful to all of us.

[English]

The Chair: Professor Martin, could you give us the citations? I think some will be found in your report, but for the rest our researcher, Ms. Pilon, will be happy to look it up.

Prof. Dianne Martin: Sure. The testimony at the Morin inquiry of the experts from Australia, the United States, and England on the management of forensic labs in those countries is on Quicklaw, on Alan Gold's database.

The Chair: Great.

Prof. Dianne Martin: I cited the one U.S. Department of Justice study and I don't think I cited the other one, but it's not hard to get.

The Chair: Okay.

I just want to thank you so much. It's been fun for us. In fact this whole project for us is just fascinating.

I want to dazzle everyone and tell you that PCR means polymerase chain reaction.

Prof. Dianne Martin: Oh, that's right.

The Chair: Let me tell you all that this is available from the Library of Parliament in something that's in all of your offices: Forensic DNA analysis: technology and application. So you guys have some reading to do.

And if you're interested, we can probably get you a copy as well.

Prof. Dianne Martin: Yes. We have a legal library. We definitely would like that.

The Chair: Our Library of Parliament is an excellent source of reports. They do excellent work for us, and we have some question about what we would do without them.

Thank you again. It's been great and I'm sure we'll have you back. It's been nice to meet you both.

We're adjourned.