FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE

8. DNA EVIDENCE


8. DNA EVIDENCE

I. INTRODUCTION

DNA evidence constitutes circumstantial evidence used to identify the perpetrator of a serious crime by comparing the DNA profile of a suspect with the DNA profile of a bodily substance found at the crime scene or on or in something associated with the crime. It can provide compelling evidence linking a suspect to the crime. It is not in itself proof of guilt.

The development of DNA technology has helped to further the search for truth by assisting police and prosecutors in the fight against crime. Aided by use of DNA evidence, prosecutors are often able to establish the guilt of an accused person. At the same time, DNA has been instrumental in assisting in the search for truth by exonerating the innocent. In Canada, the wrongful conviction cases of David Milgaard and Guy Paul Morin provide powerful examples of how DNA evidence can be used to exonerate innocent people. DNA has also exonerated other people in Canada and in other countries who have been convicted of serious offences. The Innocence Project in New York has reported 143 such DNA exonerations to date, including several for people on death row.

II. CANADIAN COMMISSIONS OF INQUIRY

a) Commission on Proceedings Involving Guy Paul Morin

Recommendation 30 - Protocols for DNA testing

he Ministries of the Attorney General and the Solicitor General, in consultation with the forensic institutions in Ontario, the defence bar and other stakeholders in the administration of criminal justice, should establish protocols for DNA testing of original evidence.

Recommendation 31 - Revisions to Crown Policy Manual respecting testing

he Ministries of the Attorney General and Solicitor General should amend the Crown Policy Manual on physical scientific evidence to reflect that forensic material should be retained for replicate testing whenever practicable. Where forensic testing at the instance of the authorities is likely to consume or destroy the original evidence and thereby not permit replicate testing, the defence should be invited, where practicable, to observe the testing. Where defence representation is impracticable (or where no defendant is as yet identified), a full and complete record must be maintained of the testing process, to allow for as complete a review as possible.

Recommendation 32 - DNA data bank

national DNA data bank, as contemplated by Bill C-3, now before Parliament, is a commendable idea, proven in other jurisdictions, and it should be adopted in Canada.

Justice Kaufman noted that there was widespread support for the creation of a DNA data bank amongst the parties at the Inquiry. He stated that in his view such a data bank would be a useful investigative tool, both in identifying guilty parties and in excluding suspects. He did not comment upon the nuances of the legislation that was before Parliament at that time (Bill C-3, which is now the DNA Identification Act) as no submissions were directed to that issue. However, he made it clear that he supported the principle of such a data bank.

III. MACFARLANE PAPER

In his paper, Bruce MacFarlane Q.C. discussed unreliable scientific evidence, and recommended that microscopic hair comparison evidence be abandoned in favour of DNA testing on any matter of significance.[201]

MacFarlane further highlighted the value of DNA evidence when he noted that post-conviction DNA testing has been used to exonerate more than 127 persons in the United States and Canada.

IV. CREATION OF THE NATIONAL DNA DATABANK

In 1998, Parliament enacted Bill C-3, An Act respecting DNA Identification and to make consequential amendments to the Criminal Code and other Acts (S.C. 1998, c. 37). The legislation created the DNA Identification Act, which authorized the Solicitor General of Canada to establish a national DNA data bank maintained by the Commissioner of the RCMP. It also amended the Criminal Code to permit a judge to make a post-conviction DNA data bank order authorizing the taking of bodily substances from a person found guilty of designated Criminal Code offences in order to include the offender’s DNA profile in the national DNA data bank.

The DNA data bank consists of two collections or indices of DNA profiles: a Crime Scene Index, containing DNA profiles derived from bodily substances found at a crime scene; and a Convicted Offenders Index, containing DNA profiles derived from bodily substances taken from offenders against whom post-conviction DNA data bank orders have been made. When a profile in the Convicted Offenders Index is found to match a profile in the Crime Scene Index, the police force investigating the crime in question is notified that there has been a match. Neither the profile nor the sample is revealed to the investigating force. Instead, the fact that a match was made may be used by the police to further investigate the offence. The match in the data bank will not, by itself, serve as evidence in criminal proceedings. Rather, the match can furnish the requisite grounds for the police to obtain a “DNA warrant” under s. 487.05 of the Criminal Code, authorizing the collection of a bodily substance directly from the suspect. The analysis of the DNA sample obtained by search warrant (as opposed to the DNA data bank sample) will constitute the evidence that is tendered at any ensuing trial.

The Supreme Court of Canada recently upheld the constitutionality of the DNA warrant scheme in R. v. S.A.B.,[202] ruling that the DNA warrant scheme strikes “an appropriate balance between the public interest in effective criminal law enforcement for serious offences, and the rights of individuals to control the release of personal information about themselves, as well as their right to dignity and physical integrity.” The Court said that “[i]n light of the high probative value of forensic DNA analysis, the interests of the state override those of the individual. Forensic DNA analysis is capable of both identifying and eliminating suspects, a feature that seriously reduces the risk of wrongful convictions.” The DNA data bank legislation is based on the same foundation as the warrant scheme.

In the three years since the National DNA data bank came into existence, it has made 2,136 offender hits (matching a crime scene to an offender) and 236 forensic hits (matching a crime scene to another crime scene). The data bank has received 63,878 samples in its Convicted Offender Index, and 16,236 in its Crime Scene Index.[203]

As the number of DNA samples in the National DNA data bank continues to increase, the chances of guilty parties being identified and held responsible for the crimes they commit will improve, and importantly, the likelihood of innocent persons being wrongly convicted will be reduced.

V. DNA - RELATED DEVELOPMENTS IN THE UNITED STATES

a) The Innocence Protection Act of 2003

In October 2003, The Innocence Protection Act of 2003 was introduced in the U.S. Senate and House as Title III of the Advancing Justice Through DNA Technology Act of 2003. The Innocence Protection Act is a package of criminal justice reforms aimed at reducing the risk that innocent persons may be executed. Specifically, the bill would allow greater access to DNA testing by convicted offenders, and help states improve the quality of legal representation in capital cases. The U.S. House of Representatives overwhelmingly voted in favour of the Act on November 5, 2003.

The Act establishes rules and procedures governing applications for post-conviction DNA testing by inmates in the federal system. It states that a court shall order DNA testing if the applicant asserts under penalty of perjury that he or she is actually innocent of the qualifying offence, and the proposed DNA testing would produce new material evidence that supports such assertion and raise a reasonable probability that the applicant did not commit the offence. Penalties are established where the testing inculpates the applicant. Where the results are exculpatory, the Act states that the court shall grant the applicant’s motion for a new trial or resentencing if the test results and other evidence establish by a preponderance of the evidence that a new trial would result in an acquittal.

The Act would also prohibit the destruction of biological evidence in a federal case while a defendant remains incarcerated, absent a knowing and voluntary waiver by the defendant, or prior notification to the defendant, that the evidence may be destroyed.

The Act authorizes $25 million in federal grants over five years to help states defray the costs of such post-conviction DNA testing.

b) Study of the Use of DNA to Exonerate the Innocent

The use of DNA to exonerate innocent people has recently been the subject of a study in the United States. Specifically, the National Institute of Justice commissioned a research study of DNA exculpatory cases. The study was conducted by the Institute for Law and Justice; it identified 28 cases in which DNA testing led to the exoneration of persons previously convicted of murder or rape. The resulting report is entitled Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.[204] This report, which reviews each of the 28 cases where an innocent person was exonerated through the use of DNA, contains commentaries written by prominent experts from a variety of disciplines in the United States. The following are a few excerpts from these commentaries discussing the importance of DNA:

  • The introduction of DNA profiling has revolutionized forensic science and the criminal justice system. DNA technology has given police and the courts a means of identifying the perpetrators of rapes and murders with a very high degree of confidence.
    An unforeseen consequence of the introduction of DNA profiling has been the reopening of old cases. Persons convicted of murder and rape before DNA profiling became available have sought to have the evidence in their cases re-evaluated using this new technology. In some cases, DNA test results have exonerated those convicted of the offenses and resulted in their release from prison.[205]
  • Post-conviction DNA exonerations provide a remarkable opportunity to re-examine, with greater insight than ever before, the strengths and weaknesses of our criminal justice system and how they bear on the all-important question of factual innocence. The dimensions of the factual innocence problem exceed the impressive number of postconviction DNA exonerations listed in this report. Indeed, there is a strong scientific basis for believing these matters represent just the tip of a very deep and disturbing iceberg of cases. Powerful proof for this proposition lies with an extraordinary set of data collected by the Federal Bureau of Investigation (FBI) since it began forensic DNA testing in 1989.
  • Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by state and local law enforcement), the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive (usually insufficient high molecular weight DNA to do testing), about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect. The fact that these percentages have remained constant for 7 years, and that the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate, strongly suggests that post-arrest and post-conviction DNA exonerations are tied to some strong, underlying systemic problems that generate erroneous accusations and convictions.[206]

VI. RECOMMENDATIONS

It is clear from the above commentaries, as well as our experience in Canada with the national DNA data bank, that DNA evidence is having an immense impact on the criminal justice system. There is great potential for reducing miscarriages of justice through the use of DNA evidence. The following recommendations would enhance the use and effectiveness of DNA evidence:

1. Promotion of DNA sampling

In the Canadian context, DNA sampling is not automatic upon conviction, rather judges order that DNA samples be taken based on criteria that include charge type, the criminal record of the offender and the best interests of the administration of justice. It is therefore recommended that strong policies and procedures for Crown counsel and police be implemented in all jurisdictions to ensure that the DNA data bank provisions are being used to their full potential.

2. Establishment of a Tracking System

In order to better understand the use and effectiveness of DNA in the criminal justice system, and to determine where improvements ought to be made, provincial tracking systems should be developed, with the ultimate goal of establishing a national tracking system. The results of a tracking system would indicate where gaps exist in the system and would provide a better sense of geographical differences in submissions to the data bank. For example, Alberta currently tracks DNA data bank orders in each of its Crown offices through the collection of statistics, which indicate whether a DNA data bank order was requested and whether it was granted or refused by the judge.

3. Education of Justice System Participants

The significance of the national DNA data bank to both convicting the guilty and exonerating the innocent should be included in any educational program for Crowns and police, and should be considered for inclusion in the National Judicial Institute curriculum for judges.

4. Implementation of Policies to Allow for Access to DNA for Independent Forensic Testing

As recommended by the Morin Inquiry,protocols and procedures should be developed by law enforcement agencies and justice departments to facilitate the release of forensic materials for independent testing upon the request of the defence. Ontario, for example, has amended its policy (written jointly with the Centre of Forensic Science) as follows, to ensure retention:

Retention of evidenc e for replicate testing

The hallmark of scientific reliability is the ability to reproduce a result. Therefore, wherever practicable, and upon completion of all relevant examination, sufficient material should be retained to allow for replicate testing by the defence. In cases where the initial examination has been completed and further examination is likely to consume or destroy the sample, scientists are encouraged to consult with Crown counsel with carriage of the case before embarking on further testing. Where forensic testing is likely to consume or destroy all of the original sample, the scientist is encouraged to consult with Crown counsel who will seek defence cooperation in arranging for observation of the examination process. Where there is no defense representation at the testing, (or where no accused has yet been identified), a full and complete record of the testing process must be maintained. The record must then be disclosed to the defence. It is recognized, however, that any decisions affecting scientific examination must be subject to the general principle that delay may be detrimental to the examination and investigative processes.

5. Expansion of the DNA Data Bank

In light of the potential benefits of the use of DNA to exonerate the innocent, the expansion of the DNA data bank should be considered. Any expansion of the list of primary and secondary designated offences (offences that are eligible for DNA data bank orders) must take into account important Charter protections to ensure that individual rights and freedoms are respected in the collection and use of DNA information. The DNA data bank legislation is scheduled for review by Parliament in 2005; this may be an appropriate time to consider the expansion of the data bank.

In May, 2004, Justice Minister Irwin Cotler introduced a bill to make the National DNA Data Bank an even more effective investigative tool. Among the proposed amendments:

  1. Adding certain Criminal Code offences, including criminal harassment, to the list of designated offences for which a DNA data bank order can be made;
  2. Permitting a data bank order to be made against a person who has committed a designated offence but was also found not criminally responsible on account of mental disorder;
  3. Expanding the list of sexual offences under the retroactive scheme (for persons convicted prior to June 30, 2000) by adding historical sexual offences like indecent assault, and the offence of break and enter and committing a sexual offence. A new class of offender would also be added to the list of offenders who may be candidates for the retroactive scheme: those who have committed one murder and one sexual assault at different times;
  4. Creating the means to compel an offender to appear at a certain time and place to provide a DNA sample;
  5. Creating a procedure for the review of DNA data bank orders that appear to have been made for a non-designated offence and the destruction of samples taken from these offenders.

The bill died with the call of the federal election.

6. Post-Conviction DNA Testing

While the issue of access to post-conviction DNA testing falls outside the mandate of the Working Group, it is recommended that this issue be considered and examined. Attention should be paid to issues such as triggering factors and cost.

VII. SUMMARY OF RECOMMENDATIONS

  1. Strong policies and procedures for Crown counsel should be implemented in all jurisdictions to ensure that the DNA data bank provisions are being used to their full potential.
  2. Provincial tracking systems should be developed to better understand the use and effectiveness of DNA in the criminal justice system, with the ultimate goal of establishing a national tracking system.
  3. The significance of the national DNA data bank to both convicting the guilty and preventing the conviction of the innocent should be included in any educational programs for Crowns and police and should be considered for inclusion in the National Judicial Institute curriculum for judges. A research package for Crowns on DNA data bank applications and the use of DNA evidence should be developed and kept current.
  4. Protocols and procedures should be developed by law enforcement agencies and justice departments to facilitate the release of forensic materials for independent testing upon the request of the defence.
  5. The expansion of the DNA data bank should be considered. Any expansion of the list of primary and secondary designated offences (offences that are eligible for DNA data bank orders) must take into account important Charter protections to ensure that individual rights and freedoms are respected in the collection and use of DNA information.
  6. The issue of access to post-conviction DNA testing should be studied.

  • [201] p. 82.
  • [202] [2003] S.C.J. No. 61.
  • [203] Statistics current as of August 23, 2004. Statistics are updated regularly at http://www.nddb-bndg.org/.
  • [204] Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen (U.S. Department of Justice, Office of Justice Programs; National Institute of Justice: U.S., June 1996).
  • [205] Walter F. Rowe, Professor of Forensic Sciences at page xv.
  • [206] Peter Neufeld, Esq. and Barry C. Scheck, Professors of Law at page xxviii.

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