Chapter 8 – DNA Evidence

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I. Introduction

DNA analysis provides the criminal justice system with powerful and persuasive evidence to investigate and prosecute crimes. It has great potential to convict the guilty and exonerate the innocent. It is clear that “the courts have overwhelmingly accepted the utility of DNA (evidence) in the criminal justice system.”Footnote 273

Since the 2005 Report was released, there have been significant legislative changes which have substantially expanded the DNA framework that guides the Canadian justice system and consequentially the workload of the DNA Data Bank. A number of commissions of inquiry have acknowledged that DNA analysis has become an integral part of the criminal justice system and one Inquiry issued recommendations that supplemented those that were included in the 2005 Report. Finally, the Parliamentary review of the original legislative framework by the Standing Committee of the House of Commons on Public Safety and National Security was completed in June 2009 and the Review by the Senate Committee on Legal and Constitutional Affairs was completed in June 2010.

II. 2005 Recommendations

  1. Promotion of DNA sampling - 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. Establishment of a Tracking system - 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. Education of Justice System Participants - 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. Implementation of Policies to Allow for Access to DNA for Independent Forensic Testing - Protocols and procedures should be developed by law enforcement agencies and justice departments to facilitate and release of forensic materials for independent testing upon the request of the defence.
  5. Expansion of the DNA Data Bank - The expansion of the DNA Data Bank should be considered. Any expansion of the list of primary and secondary designated offences 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. Post-Conviction DNA Testing--The issue of access to post-conviction DNA testing should be studied.

III. Canadian Commissions of Inquiry Since 2005

Since the publication of the 2005 Report, there have been a number of commissions of inquiry which have touched on the value of DNA testing and have demonstrated why the analysis of DNA has become an integral part of the criminal justice system. Only one inquiry, however, made specific recommendations which impacted on the role of DNA in criminal cases.

a) Commission of Inquiry into the Wrongful Conviction of David Milgaard (2008)

Commissioner MacCallum made the following recommendations:

Retention of biological samples suitable for DNA profiling should be mandatory in all cases of forensic investigation of sudden death. Quality control standards must be set and maintained for the taking and analysis of body tissue and fluid samples. Such standards are difficult to maintain when autopsies are performed in various hospital settings. I recommend that dedicated medical examiners’ facilities be established in both Regina and Saskatoon where all autopsies deemed necessary in cases of sudden death would be performed by qualified forensic pathologists in the service of the Province. Samples not currently testable should be retained on the chance that scientific advances might make them useful.Footnote 274

Although retention poses a significant storage problem, I would recommend that in all homicide cases, all trial exhibits capable of yielding forensic samples be preserved in their original form for a minimum of 10 years. Convicted persons should be given notice after 10 years of the impending destruction of exhibits relating to their trials, allowing applications for extensions.Footnote 275

IV. Legal Developments and Commentary

a) Expansion of the DNA Data Bank Framework

i) BILLS C-13 and C-18

On January 1, 2008, Bills C-13 and C-18 came into force. They expanded the scope of existing DNA legislation and improved the collection and management of DNA evidence contained in the National DNA Data Bank (NDDB). The legislation significantly expanded the list of designated offences that qualify for inclusion in the NDDB’s Convicted Offenders Index (COI). It added over 150 new offences to the list, changed the characterization of some existing offences and created a new subcategory of primary designated offences.

In terms of making a DNA order for the NDDB, there are now four categories of offences, which for simplicity can be described as:

Of the primary offences, the 16 deemed to be most serious fall into the new primary mandatory category, including murder, sexual assault with a weapon, kidnapping and extortion. In these instances, the court has no discretion whatsoever and must issue a DNA order for the NDDB. The increase of designated primary offences includes ones that were re-categorized from secondary to primary, such as those relating to child pornography and breaking and entering into a dwelling house. Other primary offences, such as sexual exploitation of a person with a disability and intimidation of a justice system participant or journalist, are new additions.

The list of secondary designated offences was also expanded to include all offences prosecuted under the Criminal Code – and most under the Controlled Drugs and Substances Act – that are tried by indictment and carry a maximum sentence of five or more years. Uttering threats and criminal harassment represent new additions to the secondary offences list.

In addition, the legislation enhanced the ability of law enforcement to solve crime and of the courts to administer justice by:

In the 10 1/2 years since the National DNA data bank came into existence, it has made 17,776 offender hits (matching a crime scene to an offender) and 2,412 forensic hits (matching a crime scene to another crime scene). As of January 17, 2011 the data bank has 209,981 DNA profiles from convicted offenders in its Convicted Offender Index, and 62,412 DNA profiles in its Crime Scene Index.

The expansion of DNA offences means more convicted offender samples will qualify for entry into the COI. An increase in entries for the Convicted Offenders Index ultimately means that more crimes will be solved and more offenders brought to justice. The NDDB has assisted in more than 17,776 investigations and it receives 600 to 700 samples per week for a current total of 227,719 samples received. 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.

ii) A Statutory Review of the DNA Identification Act – House of Commons

In June 2009, the House of Commons Standing Committee on Public Safety and National Security (SECU) released its review of the DNA Identification Act, which was mandated by section 13 of the Act when the legislation was originally proclaimed in force in two stages in May and June of 2000. The review was to have occurred within five years of enactment; however, the delay in the review allowed for a broader consideration of the impact of the legislation over a nine-year period.

The Committee heard from 14 witnesses from eight different agencies impacted by the use of the DNA Identification Act. In addition to recommending more funds for all the laboratories, SECU made the following recommendations that would require legislative change to implement:

The federal government’s response in October 2009 stated that:

The recommendations made by the Standing Committee are acceptable in principle to the Government. The Government will therefore consult with the provinces, law enforcement and other stakeholders on a priority basis with a view to developing a consensus on how best to proceed.

iii) Public Protection, Privacy and the Search for Balance: A Statutory Review of the DNA Identification Act, Final Report – Senate

In June 2010, the Final Report of the Standing Senate Committee on Legal and Constitutional Affairs was released on the Statutory Review of the DNA Identification Act. This review was also mandated by section 13 of the Act.

After hearing from more than 30 witnesses from 19 different agencies impacted by the use of the DNA Identification Act, the Committee issued a report including 22 recommendations to improve the use of the DNA Identification Act and the DNA Databank. Specifically, 7 of the 22 recommendations address issues that impact the reliability and expansion of the use of the DNA Databank:

Immediate and Automatic Collection:
The Criminal Code be amended to allow for the immediate and automatic collection of a DNA sample from any adult who has been convicted in Canada of a designated offence as defined in section 487.04 of the Criminal Code.

Retroactive Collection:
The Criminal Code be amended to allow for collection of a DNA sample from an adult convicted of a designated offence in Canada who has not previously been the subject of a post-conviction collection order, but who is still serving a sentence for a designated offence at the time that the Criminal Code amendment outlined in Recommendation 1 comes into force.

International Offences Equivalent:
The Criminal Code be amended to allow for the collection of a DNA sample from an adult who is a Canadian citizen, or who ordinarily resides in Canada, if he or she is convicted outside of Canada of an offence that, if committed in Canada, would constitute a designated offence, provided that the conviction occurs at any time after the Criminal Code amendment outlined in Recommendation 1 comes into force.

Immediate Collection from Young Person:
The Criminal Code be amended to allow for the immediate and automatic collection of a DNA sample from any young offender convicted in Canada of a designated offence as defined in part (a) of the definition of a primary designated offence found at section 487.04 of the Criminal Code.

Criminal Code Amendment Regarding Impact on Young Offenders:
In the case of young offenders convicted of primary and secondary designated offences for which a DNA collection order upon conviction is not mandatory, the Criminal Code be amended to require courts, before issuing a DNA collection order against a young offender convicted of such offences, to determine whether the impact of the collection order on the young offender’s privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice.

Statistics Collection:
The National DNA Data Bank work cooperatively with law enforcement organizations to collect statistics describing the specific nature of the assistance it provides in police investigations through matches to the convicted offenders index (COI), and the National DNA Data Bank publish these data, including data on exoneration, in its annual reports to Parliament.

Removal of DNA Sample from Bank
The DNA Identification Act be amended to clarify that, in circumstances where there has been a final determination of an accused offender’s successful appeal of his or her conviction for a designated offence, no other further opportunities of appeal are available to the Crown or to the accused offender, and the accused offender has no other convictions for designated offences on his or her criminal record, the offender‘s information should be immediately removed from the convicted offenders index (COI) after the expiry of all appeal periods, and the DNA samples taken from the offender and stored at the National DNA Data Bank should be immediately destroyed.

Stated Purpose
Section 3 of the DNA Identification Act be amended to state that the purpose of this Act is to establish a national DNA data bank to assist law enforcement agencies in identifying persons alleged to have committed designated offences, including those committed before the coming into force of this Act, as well as to assist in the exoneration of the innocent.

In addition to these recommendations, the Committee considered the impact that the recommendations will have on the justice system and more specifically on the DNA Data Bank and highlighted the need for sufficient funding if the Data Bank if to operate reliably and efficiently.

In its response, the Government stated:

The Government of Canada recognizes that the National DNA Data Bank is a vital component of the criminal justice system that contributes to the safety and security of Canadians by identifying perpetrators of crimes and exonerating those who have been wrongly suspected of committing crimes.

b) American Developments

On October 30, 2004, the Justice for All Act of 2004 was signed into law by President George W. Bush. The Act included the Innocence Protection Act, a package of criminal justice reforms aimed at reducing the risk that innocent persons may be executed. Specifically, the legislation allowed greater access to DNA testing by convicted offenders, and helped states improve the quality of legal representation in capital cases.

The Act established rules and procedures governing applications for post-conviction DNA testing by inmates in the federal system. It stated 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 were established where the testing inculpates the applicant. Where the results are exculpatory, the Act stated that the court shall grant the applicant’s motion for a new trial or re-sentencing 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 also prohibited 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 authorized substantial federal grants over five years to help states defray the costs of such post-conviction DNA testing.

On February 1, 2011, Senate Judiciary Chairman Patrick Leahy introduced legislation to re-authorize the Justice for All Act of 2004. If enacted, the legislation would direct more resources to improving the quality of representation in state death penalty cases and would also enable more states to apply for grants for the purpose of post-conviction DNA testing.

Notwithstanding the enactment of the Justice for All Act of 2004, offenders convicted under state legislation are required to resort to state legislation for post-conviction relief, including access to DNA testing.

In 2009, the United States Supreme Court ruledFootnote 276 there was no absolute constitutional right to DNA testing, holding that the state prisoner had no substantive due process right to state’s evidence so he could apply for new DNA-testing. Notwithstanding that Alaska was only one of three states without legislation enabling DNA testing, it was held that the Alaska law governing procedures for post-conviction relief was not unconstitutional. The decision reaffirmed that state legislatures and state courts should determine how and when people who have been convicted of crimes can get access to DNA testing that can prove their innocence. In essence, the Court ruled that Alaska’s post-conviction relief procedures and methods for applying them to persons seeking access to evidence for DNA testing were not constitutionally inadequate.

However, in March 2011, the United States Supreme Court provided some relief for those offenders whose requests for DNA testing have been denied by State prosecutors. In Skinner v. Switzer, 562 U.S. (2011), the Court ruled that an inmate was entitled under existing legislation to bring a federal civil rights action against State officials for a post-conviction claim for DNA testing.

Wrote Justice Ginsberg for the majority:

(The dissenters) predict a proliferation of federal civil actions “seeking post conviction discovery of evidence [and] other relief inescapably associated with the central questions of guilt or punishment.” These fears are unwarranted. In the Circuits that currently allow §1983 claims for DNA testing, no evidence tendered by Switzer shows any litigation flood or even rainfall. The projected toll on federal courts is all the more implausible regarding DNA testing claims.

c) Recent Developments in Technology and Case Law

While the admissibility of a series of nuclear DNA technologies and of the corresponding statistical analyses of it have been widely recognized by Canadian courts for over twenty years, it is only recently that some courts have ruled that experts’ evidence relating to mitochondrial DNA (mtDNA) was admissible.

Most cells in the human body contain DNA. The vast majority of DNA in any cell is stored in the nucleus. This nuclear DNA is the result of the contribution of two different sets of DNA inherited from the subject’s mother and father. Another type of DNA is found in a different part of the cell called the mitochondria. It is a much smaller molecule and different from nuclear DNA in its location, sequence and mode of inheritance. Mitochondrial DNA is obtained only from the subject’s mother.

The earliest reported Canadian case in which Mitochondrial DNA was found to be admissible appears to have been a 1999 decision of the British Columbia Supreme Court in R. v. Murrin.Footnote 277 The Court examined the four criteria set out in the Supreme Court of Canada decision in R. v. Mohan as the basis upon which the admission of expert evidence depends: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert. The Court concluded that the evidence before the court satisfied the Mohan criteria and established a threshold level of reliability with respect to the field of forensic mtDNA examination and analysis.

In R. v. Woodcock,Footnote 278 the Ontario Superior Court of Justice, engaged in a similar analysis with the same result.

Notwithstanding, the admissibility of such evidence, the Crown must be aware of the limitations of mitochondrial DNA testing and cautious in its use. There are significant differences between nuclear DNA and mtDNA. Although mtDNA is vastly more abundant and much less degradable than nuclear DNA, it is much smaller and inherited maternally only. Only two regions of mtDNA are known to be variable and while nuclear DNA testing involves consideration of 23 discrete “markers,” mtDNA is considered as one marker. This has considerable significance in terms of the rarity of a match. In terms of “uniqueness,” no two candidates are expected to have the same nuclear DNA profile apart from identical twins. With respect to mtDNA, all maternal relatives are expected to have the same DNA profiles, except for cases of “mutation.” While nuclear DNA can be used as a “unique identifier,” mtDNA cannot because all maternal relatives have the same mtDNA type.

Accordingly, while mtDNA is potentially valuable circumstantial evidence of identity, expert evidence relating to mtDNA testing and analysis must be used with caution and with a clear understanding of its limitations.

Furthermore, it should also be kept in mind that scientific research and development continues in the field of DNA analysis and prosecutors must be vigilant in keeping abreast of such innovation.

Recently, In R. v. K.M., 2011 ONCA 252, the Court of Appeal for Ontario upheld the constitutionality of sections 487.051(1) and (2) of the Criminal Code as they relate to young persons. The ruling reversed a decision of the Ontario Court of Justice which read down s. 487.051 to require all primary designated offences for youth to be treated as if they were secondary designated offences, i.e., DNA data banking on an application by the Crown and where it is in the best interest of administration of justice. Given the priorities of the Youth Criminal Justice Act, the Crown must always be diligent in assessing the application of federal legislation including the Criminal Code to young persons.

Finally, Crown are reminded that DNA testing results are valuable only when they are accurate. In 2001, Gregory Turner was acquitted in Newfoundland of the first degree murder of a 56-year-old woman. The only substantial evidence against the accused was DNA found on the accused’s wedding ring. On the ring, DNA from another contributor, believed to be an accomplice, was also found. Determination and diligence by defence counsel ultimately uncovered that the second DNA profile belonged to a lab technician who had been working on the victim’s fingernail clippings which were stored in close proximity to the wedding ring, raising a strong possibility of primary and secondary DNA transfer and contamination. In 2009, a U.S. study conducted by a University of Virginia law professor and a co-founder of the Innocence Project found that three of 156 individuals exonerated of serious crimes had been wrongfully convicted based on DNA errors. In one case a technician grossly overstated evidence, in another a senior analyst knowingly gave false evidence and in a third lab contamination was discovered. Contamination issues and lab errors have also been identified as wrongfully linking suspects to murder investigations in Australia and England.Footnote 279 These examples are a sobering reminder that the Crown must always be vigilant to ensure that the forensic testing and analysis on which the Crown rely are accurate and reliable in order to prevent further miscarriages of justice.

Another scientific development that has caused some concern is the discovery of individuals who have two distinct nuclear DNA strands in their bodies. Known as chimeras, they have unusual DNA profiles that can come about either because of blood transfusion or because two embryos merged in the mother’s uterus.Footnote 280 Prosecutors must be alive to this and any other scientific developments to ensure that DNA evidence does not contribute to miscarriages of justice.

V. Policies

Most prosecution agencies have not implemented formal policies regarding the use of the DNA legislation but have provided education to promote the use of the DNA Databank. In addition, the PPSC, Ontario and British Columbia have developed written guidelines for Crown counsel.

British Columbia

British Columbia has issued a Practice Bulletin which strongly supports the use of DNA to assist in the identification of individuals who commit crimes, exonerate individuals wrongfully suspected of committing crimes and to focus investigative resources. Crown Counsel are encouraged to seek DNA orders from all eligible offenders.

Ontario

Ontario has developed strongly-worded policy advice that sets out the value and benefits of the DNA Databank. DNA assists law enforcement in identification of offenders, but also serves to exclude innocent persons who are wrongfully suspected. In addition, Ontario has developed a practice document which highlights arguments that might be made about the value of DNA and directs Crown counsel to seek samples for DNA testing in all appropriate cases as defined by the Criminal Code.

VI. Status of Recommendations

1. Promotion of DNA sampling

Most jurisdictions have provided training and instructed Crown counsel to ensure that the DNA data bank provisions are being used to their full potential. Alberta and Manitoba have introduced a number of innovative procedures including placing charts in each courtroom showing the primary and designated offences. British Columbia’s Criminal Justice Branch intranet site contains a webpage listing resource counsel, DNA law and policy, and relevant links. Ontario’s intranet site provides policy and practice direction as well as up-to-date law and charts to use as quick in-court reference material.

2. Establishment of a Tracking System

Alberta, British Columbia and Ontario have developed provincial tracking systems which provide information concerning whether DNA data bank orders were requested and whether they were granted or refused by a judge. These tracking systems allow for follow up and provide the basis of education programs for Crown counsel and the judiciary.

3. Education of Justice System Participants

Virtually all jurisdictions have provided instruction to Crown Counsel concerning the availability of DNA access, the law relating to applications for DNA orders as well as encouraging Crown Counsel to make application in all appropriate cases.

Private education facilities in Ontario, such as Osgoode Professional Development, have also offered educational programs to all members of the justice system. These programs are often attended by members of the justice system from other provinces.

4. Implementation of Policies to Allow Independent Forensic Testing

Several jurisdictions are in the process of developing protocols and procedures to establish the release of forensic materials for independent testing upon the request of the defence. In the interim, exhibits have been released for independent testing at the request of the defence on a case by case basis.

In 2006, Ontario developed protocols for defence applications for independent scientific testing of evidence which had been made an exhibit or was in possession of the Crown. The recommended procedures integrate the rules of court and statutory provisions to develop methods consistent with maintaining the integrity of the evidence and fact-finding process throughout the trial and appeal process and beyond.

Section 605 of the Criminal Code provides for either Crown or defence counsel to make an application for the release of evidence which has been made an exhibit for testing thereby leaving it to a judge to put terms on the order to safeguard the item. Some of the factors to be considered include:

In these applications, formal notice is required to the other party and affidavits must be submitted from the agency or person responsible for the testing.

In situations where the potential exhibit is still in the control of the Crown, the Crown can consent to the release of the items without a court order; however Crowns are still urged to consider a number of factors including those set out above.

After the completion of the appeal process requests for additional or further testing should be referred to the Director of the Crown Law Office - Criminal.

A convicted person may apply under section 696.1 of the Criminal Code for a Ministerial Review by the federal Minister of Justice. These reviews may be based on a wide range of factors, including challenges to the factual validity of the conviction or fresh evidence applications.

5. Expansion of the DNA Data Bank

The Statutory Review of the DNA Identification Act completed in June 2010 recommends a significant change to the process of collections. The new process would have all individuals convicted of a criminal offence sampled. This change will substantially increase the number of samples being sent to the DNA Data Bank and would dramatically increase their workload. The result of this type of legislative change would be the expansion of the Data Bank. The federal government is currently reviewing these recommendations.

6. Post-Conviction DNA Testing

No known studies of post-conviction access to DNA testing have been conducted.

VII. Additional Recommendations

Designated DNA Coordinators in each Province. To provide a consistent contact for the DNA Data Bank and ensure that province-wide issues are managed consistently, a Provincial Coordinator should be considered for each province. Although some jurisdictions currently do this on an informal basis, these Crowns generally perform many other functions, which prevents the full development of a provincial strategy with respect to DNA.

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