Item: David Milgaard is a free man, but his name is sullied. He spent 22 years in jail for the 1969 murder and rape of Saskatoon nursing assistant Gail Miller before the Supreme Court of Canada recommended a new trial for him in 1992, basing its decision on fresh evidence that cast suspicion on another man. But Saskatchewan’s attorney general chose not to reprosecute Milgaard, in effect denying him the opportunity to clear his name in court.
Now, Milgaard’s lawyer, James Lockyer, and the federal justice department are nearing agreement on a protocol for a DNA analysis of a tiny stain thought to be sperm on Miller’s underpants. The test could, once and for all, exonerate Milgaard, now 44 and living in Vancouver. “We’re close,” Lockyer says.
Item: York University’s law faculty, Osgoode Hall, is about to launch the Innocence Project, an innovative student program offering genetic testing for federal inmates who, like Milgaard, claim to have been wrongly convicted. Beginning this fall, a handful of students will seek to unearth new witnesses, potential alibis or new forensic evidence such as DNA on behalf of convicts who say justice has been denied to them.
Those developments, among many now illustrating DNA’s power to influence court decisions, underscore the importance of a federal plan to establish a national forensic DNA data bank to help hunt down society’s worst offenders—and exonerate the innocent. According to Ottawa-Carleton police Chief Brian Ford, a spokesman for the Canadian Association of Chiefs of Police, DNA analysis has become “too powerful a tool to disregard.” The process, commonly known as DNA fingerprinting or profiling, has revolutionized law enforcement since its first use in Britain in 1985. Forensic scientists now require only a few skin cells, a hair or some saliva on a licked envelope to extract enough genetic material to link a person to a scene or crime, or to rule out a suspect. Concerned civil libertarians, however, warn that human genetic information requires careful handling because it contains confidential clues to individuals’ health and physiological makeup. In an extreme case, some could even be tempted to pose the question: why not genetically fingerprint every male child at birth, since men commit most of the violent crimes? “That’s great police efficiency but terrible human rights,” says Eugene Oscapella, an Ottawa lawyer and policy adviser for the Privacy Commissioner of Canada. “It’s a question of where you draw the line.”
It’s also a question that Canadians are beginning to face. Solicitor General Herb Gray and Justice Minister Allan Rock are eager to introduce legislation to establish a national data bank for storing the genetic profiles of serious offenders. It is a complex bill confounded
by troubling concerns over privacy and funding. Its introduction into the House of Commons has already been postponed at least twice, and could be delayed yet again if there is an election call soon. “More delays,” warns Scott Newark, executive officer for the Canadian Police Association, “mean more unsolved crimes.”
While the enabling legislation is complicated, the underlying science generally is not. The nucleus of virtually every human cell contains 46 chromosomes made of deoxyribonucleic acid, or DNA Apart from identical twins, everyone has a unique combination of DNA which makes it ideal for the purposes of identification. Forensic scientists extract DNA from blood, semen, hair, skin or any other biological substance found at the scene of a crime or obtained from a suspect. Laboratory technicians then use a variety of methods to produce a unique pattern of DNA bands that resemble bar codes. Those patterns, dubbed DNA fingerprints, can then be converted into a numerical code for storage in a computerized data bank.
Ottawa’s quest for genetic justice began in earnest in July, 1995, when the federal government passed Bill C-104, the first phase of its DNA legislation. That legislation amended the Criminal Code and the Young Offenders Act to give judges the power to issue warrants that would permit police to seize a suspect’s hair, blood or cells from inside the mouth for DNA testing. The powers can be used only on persons suspected of specific, serious crimes, including sexual assault, murder and burglaries. A data bank would be the second phase. Current plans call for two registries: one to store the genetic profiles of everyone convicted of a serious offence, the other to keep track of unidentified DNA samples retrieved from crime scenes. Then, if an ex-convict reoffended, his DNA fingerprint, like ordinary fingerprints first used by Scotland Yard in 1901, would be on file and available for use in prosecuting him. If he raped someone, DNA profiles of the semen could link him to the assault. The provinces and territories for the most part support establishing a DNA data bank. The problem, invariably, is money—namely who will pay for it. A new central lab op-
Ottawa plans to establish a data bank of criminals’ DNA fingerprints
erated by the RCMP is expected to cost $5.8 million. Start-up costs are estimated at $1.2 million, with an additional $2.2 million needed for annual operations. Once operational, about 10,000 newly convicted offenders a year would be indexed in the DNA data bank.
Beyond money, there are also unresolved questions of procedure. Ottawa’s legislation will have to designate whether DNA testing should be done when suspects are charged, as is the case with conventional fingerprints, or only after they are convicted. The police association, representing 40,000 rank-and-file members across Canada, says the plan could create problems if DNA testing is not undertaken immediately after charges are laid. Newark offers one scenario: a serial rapist arrested for burglary realizes that a burglary conviction would lead to a DNA fingerprinting, which in turn would link him to the rapes through semen profiles stored in the crime-scene registry—so he jumps bail while awaiting trial. Since arrest warrants for burglaries are rarely issued Canadawide, adds Newark, “all he’d have to do to escape is move to the next province.”
That kind of reasoning does not, however, pass muster with some civil libertarians. “I can make the same argument and say we should test everyone on the street corner because we might find somebody who’s committed multiple rapes,” says Oscapella, a key contributor to the Privacy Commissioner of Canada’s 1992 report titled Genetic Testing and Privacy. “But we do not test the entire population—we set a threshold, we say there is a certain level of criminal behavior that must have occurred before we’re going to take this extraordinarily intrusive measure by the state.”
Another concern centres on whether the biological sample should be kept or destroyed once the DNA profile is obtained. “If you keep the sample,” Oscapella warns, “it’s inevitably going to invite people who want to start looking at genetic links to criminal behavior.” That, he says, could end in “very serious discrimination against people who happen to have the misfortune to have that particular genetic characteristic.” But according to Dr. James Young, Ontario’s assistant deputy minister of public safety, storing biological samples like blood will save money by eliminating the need to collect more samples once technology improves. “They’re frankly being alarmist for nothing,” Young says. “What can be done with that blood is very limited, and surely we can devise a way of keeping such samples secure.”
But as much as DNA can help the innocent, it can also cast suspicion on an innocent person, something that Toronto lawyer and DNA expert Ricardo Federico says police must guard against. A person could, for example, smoke a cigarette in a room where two days later someone is murdered. The extinguished butt would yield enough saliva for a DNA test, which could lead police to that person. ‘You have to tread gently on the rights of the accused,” Federico says, “and make sure police have more than just a cellular sample.” In a testament to DNA analysis, the U.S. department of justice issued a report last June detailing 28 wrongful convictions for sexual assault in 14 states. The 28 men served jail sentences of between nine months and 11 years before being freed by a DNA fingerprint analysis. In Canada, DNA evidence has exonerated 12 wrongly convicted inmates over the past four years, most notably Guy Paul Morin, the Queensville, Ont., man who in 1995, after a decade of legal battles and incarceration, was finally cleared of the murder of nine-year-old Christine Jessop. That case is now the subject of a provincial inquiry.
Enter Osgoode Hall’s Innocence Project, a three-year pilot project modelled on the original Innocence Project at the Cardozo School of Law in New York City. Co-founded in 1992 by Barry Scheck, O. J. Simpson’s DNA lawyer, that initiative has helped to free some 40 inmates in the United States. The Toronto project, only the second of its kind in North America, will at first consider applications from federal inmates in Ontario serving sentences of more than five years, then perhaps expand across Canada. Eligible convicts must first exhaust all available avenues of appeal before filing a claim with the Osgoode students, who as part of a credit course would investigate, arrange for forensic DNA testing and, if warranted, apply for a ministerial review of the case under section 690 of the Criminal Code. “Nobody knows the extent to which people are wrongfully convicted in Canada,” says Alan Young, one of two Osgoode Hall professors behind the project. “If the U.S. experience is representative, we should be concerned.”
David Milgaard would clearly count himself among the wrongly convicted. His lawyer, Lockyer, is negotiating with the justice department to determine, among other things, which laboratory and procedure will be used to test the tiny stain on Gail Miller’s underwear. Two previous DNA tests—one in 1988, the other in 1992—failed, and in the attempt consumed valuable genetic material. Lockyer, who also represents Morin, says the technology has improved since then, allowing for testing of smaller quan_ tities of DNA. If the panty stain yields a 1 DNA profile, comparing it with Mil| gaard’s DNA could establish his inno-
0 cence. The semen profile could ultimately ly be catalogued in the crime-scene 5 registry of Ottawa’s DNA data bank. If
1 Gail Miller’s killer reoffends and has his I DNA indexed, or if further investigation I identifies him as a suspect and police ob£ tain a warrant to test him, he may one day 3 find himself in jail. DNA, after all, has an 1 uncanny way of meting out justice. □
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