Ricardo G. Federico In The News

DNA data review two years late

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FEATURED: Globe & Mail| WRITTEN BY: KIRK MAKIN |  March 13, 2009

The federal government is two years late in reviewing sensitive laws that govern its DNA data bank, leaving a growing pile of unanswered questions about whether the laws are inefficient and overly intrusive.

Federal officials say they are in the dark as to why no date has been set for a mandated, five-year review that should have taken place in 2005.

“This is highly out of order,” said Ricardo Federico, a Toronto defence lawyer who specializes in DNA law. “It’s a broken promise, no matter how you slice it.”

Mr. Federico said scrutiny is particularly necessary in the case of a nebulous program under which DNA findings are sent to any of 186 foreign nations – including Mexico, Libya, Burma and Albania – as part of an RCMP-Interpol agreement.

An incompetent or corrupt police force could potentially misuse or botch an investigation involving results sent from Canada, Mr. Federico said.

“What is the protocol for a DNA profile exiting Canada?” he asked. “Should the police be the only gatekeepers? Do all 186 Interpol-member countries subscribe to the same scientific criterion of a DNA ‘match?’ What guarantees or safeguards exist to avoid an international blunder as it applies to a ‘match?’ “

Greg Yost, a lawyer in the Department of Justice criminal law policy section, said in an interview that Justice Minister Rob Nicholson has been willing and ready to co-operate whenever a parliamentary or Senate committee asks him to attend a review.

Mr. Yost speculated that election campaigns and Parliament’s heavy workload may have gotten in the way of the five-year review.

Mr. Federico complained that, in general, laws dealing with burgeoning DNA technology are being dealt with in a reckless, piecemeal fashion. He cited a proposed law – Bill C-18 – which is currently before the Senate and would modify or add to DNA data bank procedures currently in force.

Mr. Federico said he is worried about some elements of the bill that will apparently expand the amount of material Canadian police can send abroad.

An RCMP spokesman, Staff Sergeant Paul Marsh, said that 220 requests have been received since the Interpol agreement took force in 2003, most of them originating in the United States.

Samples from known, convicted offenders are not sent abroad, Staff Sgt. Marsh said. Instead, foreign police agencies are told only whether the sample they sent matched one in Canada’s data bank. Police investigators in Canada and in the foreign country can then take further action if they see fit, he said.

Anonymous samples left behind at crime scenes are treated less stringently, Staff Sgt. Marsh said.

They can potentially be provided to foreign police, along with other information, if Canadian investigators see fit to do so.

Meanwhile, victim advocates are similarly frustrated by the lack of a data bank legislation review. In a large number of cases, they say that prosecutors and judges seem to forget about sending a sample of the offender’s DNA to the data bank.

“I find it absolutely bizarre that a judge can see fit not to order a DNA sample,” said John Muise, a former police officer who works with the Canadian Centre for Abuse Awareness.

Mr. Muise said that, according to two-year-old statistics, DNA orders are being made in only half of the cases involving offenders convicted of particularly serious offences. He said the number is even lower – just 20 per cent – for offenders convicted of a designated “secondary” offence.

Yet, any of those offenders could be responsible for another crime in the future that could go undetected if their DNA is not in the data bank, Mr. Muise said. Mr. Yost said that if and when Bill C-18 comes into force, it will include a 90-day “window of opportunity” for the Crown to return to court seeking DNA orders.