Appearance before the Senate Standing Committee on Social Affairs, Science and Technology on Division 17, Bill C-43, Economic Action Plan 2014, No. 2 Amendments to the DNA Identification Act

November 5, 2014
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Good afternoon Mister Chair and Members of the Committee.

Thank you very much for the invitation to present our views on Division 17 of Bill C-43, amendments to the DNA Identification Act (the Act). 

I am joined today by Carman Baggaley, a Senior Policy Analyst with my Office. 

The proposed amendments to the Act serve two purposes: to support investigations involving missing persons and unidentified human remains; and to support criminal investigations.  The first is a humanitarian purpose that can help bring closure to families and friends of missing persons.  The Bill proposes to fulfil these two purposes by creating five new DNA-based indices.

I agree that society is well served by locating missing persons and identifying human remains and that creating a DNA databank is a reasonable way of achieving these objectives. I also understand that the National DNA Databank (the NDDB) serves an important and valuable law enforcement function. My Office is represented on an Advisory Committee that provides advice and strategic guidance to the NDDB concerning scientific, legal, and ethical matters.  

Having said that, I have some reservations about the way in which the Bill comingles these two distinct and very different purposes. 

In particular, I have some concerns about the extent to which the Bill permits the cross-matching of the proposed new indices designed to locate missing persons and the existing crime scene and convicted offender indices – the CSI and COI - that serve law enforcement purposes.

When families provide the personal effects of the missing person or their own biological samples, they are doing so for humanitarian purposes. Their wishes should be respected and further uses of the derived profiles for law enforcement purposes should be prohibited or strictly limited.

The Bill recognizes that the profiles of relatives can only be used for humanitarian purposes; it can only be compared to the missing persons and human remains indices.  I believe the use of the profiles of missing persons should be similarly restricted.

The Bill would allow comparison of the profiles of missing persons against the CSI and the COI, raising the possibility that this matching could link a missing person to a crime scene or to a convicted offender. 

Furthermore, the Bill would allow information about these matches to be used to investigate a designated offence if the law enforcement agency has reasonable grounds to suspect that the information would assist in the investigation or prosecution of the offence.

Using information collected for one purpose –  to identify remains – for another purpose, such as linking the DNA of a missing person to a crime scene would violate the principle that personal information should only be used for the purpose for which it was collected. 

If, nonetheless, a decision is made to allow the profiles of missing persons to be matched against the crime scene index and any matches used for law enforcement purposes, the relative who provided the personal effect of the missing person should be informed of, and consent to this matching.

We also have concerns about the amendments to the Act that would increase information sharing with foreign states or international organizations. The Bill would allow a foreign state or international organization to send a profile to the NDDB that can be compared against not just the COI and CSI, as is the case at present, but also against the missing persons index and the human remains index.  In addition, the Commissioner of the RCMP would be able to send profiles from the missing persons and the human remains indices to a foreign state or international organization. 

This would appear to open the door to a possible match of a foreign crime scene profile with a Canadian missing person profile, implicating the missing person in a foreign crime. Or, conversely, this could implicate a missing foreign person in a Canadian crime. The decision to share this information is discretionary on the part of the RCMP Commissioner but it does raise the possibility of sharing information about these types of matches.

Given the concerns we have expressed above about using missing person profiles for law enforcement purposes and given that on two previous occasions Senate Committees reviewing the DNA Identification Act have raised concerns about the possibility of sharing information with a foreign state with respect to an offence that may not be an offence under Canadian law, I would urge that the proposed amendments to increase international sharing be removed from the Bill.

I welcome your questions.