Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6 - Evidence for April 22, 2009
OTTAWA, Wednesday, April 22, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:31 p.m. to study the provisions and operation of the DNA Identification Act (S.C. 1998, c. 37).
Senator Pierre Claude Nolin (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Honourable senators, I call the meeting to order. For those listening to us through the wonder of electronic transmission, today, we are continuing our study of the provisions and operation of the DNA Identification Act (S.C. 1998, c. 37). This is a statutory review pursuant to the act, requiring Parliament to review the statutory provisions every five years.
Welcome to our witnesses from the Office of the Privacy Commissioner of Canada, Chantal Bernier, Assistant Privacy Commissioner, and Carman Baggaley, Strategic Policy Advisor.
First, we will hear your opening remarks, and then the senators will ask questions. You can use the official language of your choice. The floor is yours.
Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada: Mr. Deputy Chair, thank you for that welcome. I would like to share with you the general principles that guide us in defining our position on this act, and then I will give the floor to my colleague, Mr. Baggaley, to voice a few concerns about some of the proposed amendments.
[English]
Let me start with the premise that we feel must guide us in the analysis of this legislation.
We believe that the premise we must start from is that inclusion in a DNA data bank entails in principle a deep intrusion of an individual's privacy. This intrusion of privacy comes from the breadth and the sensitivity of the information a DNA sample contains. It constitutes a veritable life code capable of revealing almost all facets of a person's mental and physical characteristics.
The right to privacy, as has been stated on numerous occasions by the Supreme Court of Canada, deserves constitutional protection and goes to the essence of a democratic state. It follows that the collection and retention of DNA information must meet the highest possible standards of balance between privacy and security.
The criteria for this balance have been established in Canadian law and I would like to put them to you in a summary. First, the invasion of privacy must be strictly proportionate to the security need it serves. Second, that security need must be established in the context of a free and democratic society. Third, the information so gathered must be managed in a manner that ensures that the invasion of privacy never exceeds the established security need.
[Translation]
It is our opinion that these criteria justify the existence of the DNA Identification Act and form the basis of the management framework developed to support it. I would particularly like to express our support for some of these features.
First, we consider that the DNA segments used are limited enough to protect the privacy and identity of the subjects. Second, we are satisfied with the separation between the DNA data bank and the personal identity data bank. Third, we approve of the parameters that restrict access to the data bank to a limited number of individuals.
We strongly believe in maintaining the legal framework that restricts the use of DNA information to law enforcement purposes. Finally, we are satisfied with the governance regime of the DNA Data Bank, especially because we are a member of the RCMP's National DNA Data Bank Advisory Committee, pursuant to the statute. And I represent the Office of the Privacy Commissioner of Canada on that committee.
[English]
As I mentioned in my introduction, we would like to issue some cautions with respect to some suggestions that have been made in the review of this legislation. For that, I now turn to my colleague Mr. Baggaley.
Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada: First, I would like to comment on the troubling shift away from the original rationale of creating the data bank. In the year since the act was passed, the scope of the scheme has been significantly expanded. It was first expanded by Bill C-36, the Anti-terrorism Act, then by Bill C-13, and more recently by Bill C-18. The act originally focused on taking DNA from offenders who committed serious violent and/or sexual offences that were likely to leave traces of bodily substances.
We are now taking DNA from a much broader range of offenders — offenders who have committed what are often called ``gateway offences'' or precursor crimes on the apparent assumption that these individuals go on to commit more serious crimes.
We are certainly aware of the pressure that this committee faces to recommend expanding the database to include even more offences, to permit taking DNA on arrest, to allow for familial searches and to allow an increase in international information sharing. We caution against these measures.
Let me elaborate. First, familial searching would allow the data bank to search for near matches; that is, close blood relatives who are likely to have similar profiles to the offender. From a privacy perspective, familial searching is troubling because it turns family members into ``genetic informants'' and it can result in the disclosure of very sensitive information about family members. Familial searching turns people into suspects — not because of what they have done but simply because they are related to someone who has offended.
We are also opposed to taking DNA upon arrest. Not only does it threaten the presumption of innocence but it would also create a disproportionate impact on the privacy rights of certain groups. Visible minorities and Aboriginals have a higher arrest rate than the rest of the population. Thus, the collection of DNA upon arrest would disproportionately affect their right to privacy.
The act allows for sharing of informing from the DNA data bank on a case-by-case basis with foreign jurisdictions. We would caution against proposals to link the Canadian database to a central system that would allow foreign states to routinely carry out searches.
This brings me to my final point: The international context.
The committee has heard from witnesses who think that Canada should follow the example of England and the United States. We disagree. In England and Wales, anyone arrested on suspicion of a recordable offence must submit a DNA sample.
Taking DNA on arrest is also becoming more widespread in the United States. England's policy of taking DNA on arrest and retaining this information indefinitely was recently criticized in a 2008 decision of the European Court of Human Rights. The court ruled this practice was a violation of Article 8 of the European Convention on Human Rights. It is noteworthy that in its decision the European court quoted a Supreme Court decision with regard to the inherent intrusiveness of taking and retaining someone's DNA. The practices of other jurisdictions weighed heavily in the European court's decision. This illustrates, in our view, the responsibility democratic countries have to one another when setting policy in a new and controversial area such as DNA sampling and retention.
In conclusion, as Commissioner Bernier mentioned, we are supportive of the safeguards built into the DNA scheme. We would like to see these retained. We support the prohibition against using samples for research and we are of the view that the use of the data bank should continue to be restricted to forensic identification purposes.
The Deputy Chair: Senator Milne, do you have a question?
Senator Milne: Thank you very much for coming because your remarks echo some of my own concerns.
We have heard testimony that DNA samples have not been destroyed from the data bank. This concerns me, particularly when it comes to DNA of young offenders. When they hit 18, their record is expunged; it no longer exists. However, apparently their DNA is still being held by the data bank. What is your opinion of that?
Mr. Baggaley: We are certainly aware of the recent Ontario Court of Justice decision, and I think we share perhaps the concern and mystification of Justice Marion Cohen who could not understand why so few samples had been destroyed. The logic would seem to be that either they are not complying with the legislation or I think it is 97 per cent of the young people have reoffended in such a way to justify retention.
That decision is very significant in another context with respect to all offenders, and that goes to the potential issue of taking DNA on arrest. If you take DNA on arrest, the assumption is that if the person is subsequently acquitted the sample would be destroyed. However, if that is not happening with young offenders, I think you should ask whether you can have confidence that it would happen if you were to introduce a scheme where DNA was taken upon arrest under the assumption that it would be destroyed if the person was acquitted.
Senator Milne: That leads me to something that is a bit outside the scope of our study but is of concern for the future. Who owns a person's DNA?
Senator Banks: Disney.
Senator Milne: That is only Mickey Mouse.
Mr. Baggaley: That is a challenging issue not only with respect to this issue, but we are starting to look at other issues.
Senator Milne: Hospitals draw blood; they have your blood and your DNA.
Mr. Baggaley: Yes, and a sample is taken of virtually every newborn in Canada and that is retained. The issue of who owns your DNA becomes relevant with the proliferation of direct consumer tests.
The Deputy Chair: I think the question is different. There is a slight and important distinction. I think the question is: Who owns the sample? I think the person owns the DNA, but who owns the sample? That is the question: Who has the rights over the sample?
Senator Milne: No, it does carry on from there, Senator Nolin because you can get the DNA from that sample.
The Deputy Chair: That is correct.
Senator Milne: The owner of the sample has the DNA.
Mr. Baggaley: DNA, though, more than any other issue, raises the problem that, while my information about my interests relate only to me, my DNA information also tells you something about my children. It may tell you something about my children's children. The issue of ownership with respect to DNA is very complicated because it is shared. It is one of the few types of information that is both shared and predictive, so it is very sensitive. That goes to the importance of ensuring that any scheme, whether it is a law enforcement scheme or a health program, has measures in place to ensure that the information is protected to the greatest degree possible.
Senator Milne: There are private labs out there now doing it. What sort of guarantees are there about any of them?
Mr. Baggaley: That is one of the challenges we will face. You can now send a DNA sample to a lab, and for $400 or $500, they will send you back certain information about whether or not you are more prone to a certain condition, whether or not you are likely to develop gout, the likelihood that you will suffer hair loss. That is becoming increasingly common. How that information is protected and who owns it — what the rights are with respect to the use of that information for research, to be disclosed potentially in the event of a law enforcement agency showing up and asking for that information — those are all questions that we must answer.
Ms. Bernier: If I may, you are obviously raising an extremely relevant question. As you can see, we do not have the answers.
I would like to share two things. First, in identifying four policy priorities, we have identified genetics as one of them. In fact, Mr. Baggaley is the leader on that priority. We hope to then explore exactly the issues you are putting to us today.
Second, we held a meeting of experts on March 23 precisely to start exploring all of these issues that are arising now with the scientific developments around genetics. We intend to pursue this and intensify our efforts in that area to develop a framework ethically, legally and socially precisely on the issues that you raise.
Senator Milne: I thank you for that. That is encouraging.
Senator Baker: First, I want to welcome the witnesses here. Many of us believe that you do a magnificent job in your office with so few people. It is really extraordinary.
As far as your submission is concerned, I see that you object to a fundamental shift that has taken place in legislation, specifically with the passage of two bills recently which identified designated offences that are mandatory and are outside of the discretion of the judiciary. You say, as Senator Bryden pointed out at this last meeting, that some of these offences are relatively minor in nature and involve, in the case of youth, a mandatory order for DNA if they get into a school yard scuffle or if someone were to throw a pencil and be charged with assault with a weapon.
Recognizing your objection, I want to ask you whether you agree with the recommendation of the advisory committee, which you sit on. Referring to the technology regarding familial searching, in your last report:
Parliamentarians may wish to consider authorizing the use of this technology only in unsolved cases falling within the 16 most grave Criminal Code offences for which DNA orders are now automatic upon conviction.
As you have already recognized, of the 16 designated offences, some are minor in nature.
Do you agree with this recommendation by the advisory committee that we recommend that familial searching or sample searching be allowed under this act?
Ms. Bernier: If I heard you correctly, the recommendation you are referring to suggests that parliamentarians consider it.
Senator Baker: Yes. I suppose you are right in what you have suggested. Are you saying, then, that you would only support our consideration of it and not our implementation of it in our recommendations?
Ms. Bernier: I believe that is the conclusion that you must draw from my position and from Mr. Baggaley's presentation.
Senator Baker: Let me get to the main question concerning this matter. It concerns the use of familial searching techniques, which are in existence today in the regional areas because they are not permitted under this act, but they are permitted in the regions.
We had an example before this committee of a murder that took place and the regional authorities had no evidence except some DNA. They went out and, from the immediate community, they received DNA from people. One of them had a partial match or familial connection to the DNA at the crime screen. Thereby, they went and tested the entire family and found the perpetrator.
It is in existence today but not under this act because we have not given it authority to do so. In your opinion, is there a danger of false positives and false negatives more so than what we have been discussing as far as DNA evidence is concerned in terms of familial searching, whereby you take a partial sample and identify it as belonging to a the family of someone who is held in jail, having committed an offence. You then take that family and that grounds a search warrant to take their DNA. What is the objection on false positives? What is your opinion?
Ms. Bernier: My understanding is that there is, indeed, a high risk of false positives. I would ask Mr. Baggaley to elaborate on that.
Mr. Baggaley: The larger the database, the greater the risk of false positives. Although close relatives are much more likely to share similar profiles, if you take a large sample of people — in particular, say, the U.K. database that has millions of samples in it — you will find that many profiles are similar to any given individual's profile simply because the database is so large.
That means that, in the course of investigation, you have the potential to turn over a large number of stones, many of which turn out to be fruitless. In the course of doing that, there is certainly the potential to disclose, reveal or uncover a great deal of information. Clearly, false positives are a known risk of familial searching.
From our view, saying, ``We will only allow it for the 16 offences that have been now made mandatory because they are the most serious,'' has some attraction to it. However, what we have seen when we look at the DNA Identification Act in the seven or eight years since it has been enforced, is a steady erosion of the act. If we allow familial searching today with respect to those 16 offences, our concern would be that it would, in a sense, open the floodgate and, five years from now, we would be debating whether or not to allow familial searching for all primary offences. That would lead to a later discussion as to whether we should allow familial searching for all secondary offences.
Senator Baker: Therefore, there is a real possibility of false negatives in this searching. You have said in your submission — and I listened carefully — in Canada, visible minorities and Aboriginals, when you talked about the rate of incarceration and arrest, are several times higher than that for other Canadians.
I gather your argument is that you would then have an unfair situation. That is, the families who are in our jails today could be subjected to testing, in an unfair proportion, to those who are Aboriginal and those of visible minorities than those of other Canadians, am I correct?
Mr. Baggaley: Precisely.
Effectively, familial searching implicitly includes the close family members of everyone who is in the convicted offender index. It includes their family members in the index because, if you allow familial searching, they can be linked to a crime scene profile disproportionately.
Senator Baker: If I understand you correctly, in familial searching, you may not have that person in that family so connected.
Mr. Baggaley: Yes.
Senator Baker: The positive error is there because you are not certain. Even though there is a familial connection, there may be no one in the family that has that DNA. Is that correct?
Mr. Baggaley: This is a question you probably should have asked Dr. Fourney.
My understanding is that any close genetic relatives — as opposed to social relatives — will have similar profiles. The problem is that many unrelated people will also tend to have similar profiles.
Senator Baker: In conclusion, let me read from the legal counsel to your legal counsel: A Lisa Campbell, who spoke on February 26, 2009. She stated:
We are concerned about familial searching which may produce false positives — samples that look like they might be relatives but are not, as well as false negatives — close blood relatives whose DNA profiles do not suggest kinship.
You are suggesting there is a basic flaw in that kind of logic that proposes what we are asked to do by certain persons.
Mr. Baggaley: I am not sure there is a flaw in the logic so much as an issue with what it would result in. The false positive concern is much greater. You will come up with a huge number of people who are not, in fact, related. The risk of false negatives is significantly less than the risk of false positives.
Senator Angus: Thank you for your presentation.
I am a bit confused on the terminology here. I am not that sophisticated regarding scientific terms, being a new member of the committee. However, I would like to understand what you mean by the expression ``familial searching.''
I understand you have the original sample, the sample that is discovered at the crime scene; it is the original DNA sample that you have. You will do familial searching. What happens at that point? For example, you have a lock of hair and you go to the data bank and you start to see if there are similar samples. Is that how it starts?
Mr. Baggaley: Let me try to explain. I want to clearly say that I have no science background.
First, you would take the crime scene profile and compare it to the profiles in the convicted offender index in the hopes that there would be a match.
Senator Angus: That is the first thing you do?
Mr. Baggaley: That is done automatically. You would only think about familial searching if you do not get a match. The next step would be to see if there are profiles in the Convicted Offender Index that are sufficiently similar to suggest that the person may have been the relative of someone who is in the index.
Senator Angus: Do you mean that they are sufficiently similar to the crime scene sample?
Mr. Baggaley: No, they are sufficiently similar —
Senator Angus: To what?
Mr. Baggaley: When you do the sample, let us say for the sake of argument you come up with 50 profiles in the Convicted Offender Index.
Senator Angus: None is a perfect match.
Ms. Baggaley: None is a perfect match, but they are all sufficiently similar to the Crime Scene Index to suggest that it might be a relative.
Senator Angus: Are there criteria that would bring the words ``sufficiently similar'' into play? Scientifically, are there? Is there a 10 per cent variance?
Mr. Baggaley: I am aware of at least two ways of doing it. One way is you look for a rare allele, in other words, something that jumps out at you that there is this odd characteristic of this profile and over here, we have a profile with this unique characteristic.
The other way of doing it is very statistical. You decide that we will only look at ones that have an 80 per cent match or an 85 per cent or a 90 per cent match. Then you have a group of people who may be related. Some of them will be and some of them will not be, and then there are different ways to investigate those people.
The situation can become very sensitive, from a privacy perspective. If you work under the assumption that someone is a relative of the person in the Convicted Offender Index because their sample is highly similar and you start asking questions, a person can become aware, for instance, that a long-lost brother committed a crime five years ago and has DNA in the Convicted Offender Index. This type of investigation, if it is not handled sensitively, can lead to privacy issues.
Familial searching produces leads. Many of them will not be productive leads. Familial searching works under two premises. One is the scientific premise; that people who are related to one another tend to have very similar profiles. The other premise is, I suppose, a sociological phenomenon, which is a little more troubling to use. It is that, particularly among some subgroups, if one member of a family has committed a crime, it is more likely that another family member has committed a crime than if you just take someone off the street. To be simplistic, it is the idea that crime runs in families. That is one of the other assumptions of familial searching.
Senator Angus: Familial searching can go in many directions. There has to be some sensitivity, as you say, some judgment exercised. Basically, it is searching for the needle in the haystack, but it is an educated search.
Mr. Baggaley: That is a good way of putting it.
Senator Angus: Thank you. I cannot see the example you gave of the long-lost brother. From my perspective, it does not seem to be that offensive in terms of a privacy issue. Are there other issues that you could perhaps indicate to me, assuming we are restricting it to the 12 serious crimes or whatever?
Senator Baker: It is a list of 16 serious crimes.
Senator Angus: Could you indicate some of the privacy issues that would inhibit or, in your view, make it very dangerous from a privacy point of view?
Mr. Baggaley: Another example is you have a person who is currently incarcerated and has been for the last several years; clearly, this person did not commit the crime. What you have discovered, however, is that there are —
Senator Angus: Great similarities.
Mr. Baggaley: Similarities, so you talk to this individual and you say: Do you have brothers? Do you have children? How old is your father? First of all, the person is maybe coerced or may willingly provide this information. For someone that this individual may suggest — yes, I have five male children — the law enforcement officials figure out a way to get DNA, such as discarded cigarettes; I am sure you have heard these explanations. In the course of testing, they discover that at least one of these profiles does not even come close to looking like the convicted offender.
What does that tell you? This person thought that he had a biological son and he does not have a biological son. If that is not handled sensitively, you are simply informing someone that what they thought was a biological son in fact is not a biological son.
Senator Angus: Right, so you think it will increase the divorce rate. No, I hear you. I am sure most of us who are up here in Ottawa for three days a week, at one time or another are in our hotel rooms watching CSI or one of these things, and every program now has a DNA reference. Since I am on this committee and reading these materials, I am paying more attention to it.
However, I am having a hard time being persuaded that these privacy issues are that serious. I have to question myself: Am I too insensitive to be sitting here on this issue? Anyway, I understand what it is now.
Senator Banks: I understand that two of the objections you have — I do not know if they are the most important ones — are the intrusive nature of taking DNA samples from somebody upon arrest because it questions the presumption of innocence. You sort of raised this question when you answered Senator Milne's question, but a second problem that I think you talked about was the fact that DNA is retained. DNA can just as well, I assume, be exculpatory as it can be used to convict.
Am I right that if the DNA has proven to be exculpatory that there is no longer a valid reason to keep it? Is that the nature of what you are talking about — that it is inappropriate to keep it after that?
Ms. Bernier: It is in the act, actually.
Senator Banks: Assume that it found the person to be absolutely innocent.
Ms. Baggaley: Ms. Bernier just reminded me that there is a provision in the act for removing DNA found at a crime scene if it turns out that it either belongs to the victim or is not relevant. It is difficult to speculate what would happen with taking DNA on arrest because we do not have that scheme.
Yes, DNA can be used to prove that someone did not commit the crime. I think it is useful to keep in mind that these are the exceptions and not the rules.
A case that is cited in the United States regarding DNA being used to free an individual is interesting because this individual was able to demonstrate that his DNA did not match the DNA at the crime scene. Nonetheless, he was kept in jail for a significant number of years. It was only until they conducted a familial search in the United States to find an individual that they were able to identify this person.
The mere fact that DNA does not match is not, in and of itself, a get-out-of-jail-free card. There have been any numbers of cases in which individuals have demonstrated that the DNA at the crime scene does not match their DNA. For various reasons, some of which make perfect sense, law enforcement agencies have ignored that and the person has been kept incarcerated. I think you can figure what some of those arguments would be.
Senator Banks: I am talking really about the point that you raised about the European Court of Human Rights in which you said that it was in legal violation of a person's human rights to keep a person's DNA sample when they had no prior conviction. In those instances, because they can take DNA upon arrest, would that court have been less likely to object if the DNA had been destroyed after the fact?
Mr. Baggaley: I hesitate to speculate what the court would have ruled, although, if you read the European Court's decision, the U.K. scheme is somewhat exceptional. It was a ruling on the U.K. scheme. There are other European countries that take DNA on arrest, but they do not retain it indefinitely, even though the person is acquitted.
The Marper case specifically hinged on the U.K.'s practice of keeping DNA indefinitely after someone had been acquitted. How the court would have ruled if the U.K. had a policy of destroying DNA two years after an acquittal, I will not speculate.
Senator Banks: I will ask a silly hypothetical question now. If persons with red hair and freckles were shown to be convicted in large numbers for shoplifting; and, if their DNA sample was kept and you therefore had more instances of looking at the DNA of people who had red hair and freckles; why would that be unfair?
I am asking the question because you have suggested that, since people of some definable group are more likely to be arrested and more likely to be incarcerated the incidence of the use of DNA in those kinds of searches is demonstrably unfair. Why is it unfair?
Mr. Baggaley: Let me try to answer that question. In your scenario, you worked under the assumption that people with red hair are, in fact, committing more crimes. There is some reason to believe that some groups in Canada and in the United States, and in most places in the world, may be subject to greater scrutiny and to greater arrest, and may be pulled in to the police station more often — not necessarily because they are committing more crimes, but because they are a member of an ethnic or racial group.
Senator Banks: You talked about incarceration.
Ms. Bernier: And arrest.
Mr. Baggaley: If you are arresting people more often, you are making greater effort to arrest these people. The other consideration is that if you open the door to taking DNA on arrest — and I believe Dr. Fourney raised this possibility — you open the door to the possible abuse of that scheme. It is not that difficult to imagine a law enforcement agency having reason to believe that you committed a crime five years ago. They have never been able to link you to that crime and there is crime scene DNA.
If you introduce a scheme in which you can now take DNA on arrest, it is not too much of a stretch of the imagination — particularly given that we may not be talking about, to be simplistic, the most upstanding people in the world — that it might not be that hard to find a reason to arrest this individual. Why are you arresting this individual? Because you want to take the DNA in order to try and link this individual to an unsolved crime five years ago.
Taking DNA on arrest opens the scheme to that type of abuse and it clearly raises significant civil rights implications because of the disproportionate number of people of some ethnic groups and minorities.
Senator Banks: Would that unfairness be obviated if the DNA were taken only upon conviction?
Mr. Baggaley: The scenario that I set out would not be possible if you only take DNA on conviction. You could not come up with an excuse to take DNA to try and solve a past crime.
Senator Banks: That would eliminate the unfairness question?
Mr. Baggaley: Yes. If you think about it, if the person will be convicted, you will get the DNA three months or six months from now, assuming the scheme works, when the person is convicted. Taking DNA on arrest gives you that window when you can look backwards. If they person is convicted, then you will get the DNA anyway. Taking DNA on arrest allows you to say, ``We have this DNA from this person who we have arrested. We will compare it to the DNA in the Crime Scene Index.'' You may then be able to link it to a past crime. It works backwards. If he is convicted, you will get it anyway.
The Deputy Chair: To follow up on the scenario that Senator Banks has just alluded to, reassure me that profiling is not involved. That is, trying to obtain a warrant to arrest someone because of the colour of someone's hair. I hope the answer is, ``No way.''
[Translation]
Could the police make an argument for using a data bank because the eye colour of a wanted person matches the eye colour of a type of individual who, according to their profile, is more likely to commit a given offence? Could they ask the court for an arrest warrant solely on that basis?
Ms. Bernier: I have never heard that argument.
The Deputy Chair: The purpose of my question was to reassure those who are listening to us. We do not have that type of procedure in Canada.
Ms. Bernier: I have never heard that.
[English]
Senator Angus: I think the witness is saying that in the United States and in Canada, there is a tendency to arrest more frequently certain groups, not necessarily people with red hair and freckles.
The Deputy Chair: In Canada, we still need a warrant to arrest someone — that is, unless we see someone committing a crime.
Ms. Bernier: There are studies on this, one of them in the context of the Royal Commission on Aboriginal Peoples. You may recall that one of the chapters in their report was specifically on justice. It was brought to light that there is a higher arrest rate and that it is not necessarily because of higher commission of crime but, rather, because of some embedded systemic issues.
[Translation]
The Deputy Chair: A number of senate committees study this issue, which we all deplore. The witnesses who appear before our committee tell us that, officially, they never use such procedures. Unfortunately, when we look at the results, we see a trend start to emerge.
[English]
Senator Wallace: I would like to get a better sense of the types of issues that you considered in making your recommendations. What do you see as shortcomings in the existing system and where there is need for change?
Madam Bernier, as you pointed out in your presentation, the taking and collecting of DNA samples is an intrusion of privacy. The issue is, is it acceptable in our society?
As you point out, it does not follow that collection and retention should be prohibited, but that collection and retention must respect the highest possible standards of fair balance between security and privacy. It is not simply a privacy issue. It has to be balanced against security. That criteria for a fair balance, as you point out, is established in Canadian law. The invasion of privacy, as you point out, must be strictly proportionate to the security need that it serves.
Obviously your role is to protect the privacy rights of all of us, and thank heavens that you do, and we certainly get the message loud and clear you take your job very seriously and do it very well.
Mr. Baggaley, in your portion of the presentation, you comment on what you describe as a troubling shift from the original rationale for creating the DNA Data Bank. You believe that the number of offences for which DNA samples are taken and included in the data bank should be kept to a minimum, and you expressed your concerns about familial searching, none the least of which is because of your concern of the privacy interests. I can understand your comments. However, that is only one-half of the equation, as I see it.
There is the ultimate test of whether those issues of privacy are being balanced against the security needs they serve. When you considered all of this and you reached your conclusions you have, did you balance them against the security needs they serve? Are you doing any detailed analysis of the security needs to see if the recommendations you are making will be consistent with the balance, or is it more heavily weighted towards the protection of privacy, which is the fundamental role of your commission?
Ms. Bernier: The answer is yes, absolutely. We analyze very, very closely, and that is the reason why I started my presentation by giving you the lens through which we examined the issue. By the way, until I was appointed to this position, I was Assistant Deputy Minister at the Department of Public Safety, so as you can see, I have had to look at the issue from both sides.
As I said in my presentation, we believe that in Canada, having chosen a democratic society, we must start from the premise that we will protect fundamental rights. Privacy is a fundamental right and therefore, when we assess the appropriate curtailment of a fundamental right, we must do so according to a strict test of necessity. It is through that lens, upon evidence, that we analyzed the DNA Act and that we have come to the conclusions that we have put to you today.
Senator Wallace: Again, there are privacy rights of the individuals who are providing the samples, but there are also the privacy rights of victims who may be unknown at that point or the protection of the public so that a minimal number will become victims. There are privacy rights there that require protection as well. Because of that, for those who would advocate a stronger use and perhaps a broader use of the DNA database because of the protection it would provide to potential victims, to minimize the number, I think there is a strong privacy interest there to be looked at as well.
Quite frankly, I did not sense that in your presentation. Your focus seems to be more on the privacy rights for those from whom these samples are taken, which is legitimate. As everything in life, there has to be a balance. I want to get some comfort that you are considering that balance.
Ms. Bernier: I thank you for the opportunity to clarify. We absolutely are enlightened in our analysis by the evidence that comes from criminologists, law enforcement, and criminal justice statistics that inform us as to the opportunity and effectiveness of certain curtailment of fundamental rights. The Charter allows certain curtailments of fundamental rights in the context of a democratic society and for the purposes that you state, and one of them, obviously, is public safety. That is definitely the analysis that we apply. I can comfort you, I hope, on that.
Senator Wallace: I am comforted. Thank you.
Senator Bryden: I believe Senator Angus and I are both correct in indicating that the DNA and the right to access DNA comes from the identification of designated offences to which the use of DNA can be applied. That list has been increased, and the senator had indicated that the list of designated offences would serve the narrow the scope of the searches in order to access the DNA of suspects.
Once you have the DNA, there is a lot of stuff in the act indicating how you communicate the information that you have in the data bank, if it is requested properly, to either a local law enforcement body or an international body. You can share the DNA, and presumably it has to be DNA that was extracted or made available because you are dealing with designated offences.
Section 6(1) gives the right to communicate information to law enforcement officers, whether domestic or not, and then it says in section 6(2) that information that is communicated under subsection (1) may be communicated subsequently to a person to whom the communication is necessary for the purpose of an investigation or the prosecution of a criminal offence.
Senator Baker: That is pretty broad.
Senator Bryden: What we thought was restricted to the list of designated offences may very well be broadened quite significantly by this section allowing the exchange of that information for the investigation or prosecution of any criminal offence. My word is ``any'', but it says ``a criminal offence,'' and the code is full of criminal offences. Once you get over the hump of actually being able to have the DNA and the opportunity to use it based on the fact that it is restricted by designated offence, then comes along this section which would allow the police, not that they would extend it, the opportunity then to spread their net and to deal with any criminal offence and use DNA for that purpose.
If nothing else, I think we have to address whether that does, in fact, do that. I would like an opinion on that, but you are not lawyers.
Ms. Bernier: I am a lawyer, and we have our legal counsel here.
Senator Bryden: It is perhaps one of those things that this committee should be taking into account, and it may be useful to tidy it up and make it clear.
[Translation]
The Deputy Chair: Senator Bryden raises an important point, but question period is almost over. If you do not mind holding off on your response and giving it to us in writing, you could reflect on the question and go into more detail than if you had answered the question orally.
Ms. Bernier: I would like to point out that the senator's question is more of a matter for the Department of Justice because not only is it a right to privacy issue, but also, and more importantly, it is a matter of interpreting the act in question. It is really a matter that should be addressed by the Department of Justice.
[English]
Senator Bryden: I do not think you can pass the buck completely.
The Deputy Chair: That is why I will write to the witness.
Senator Bryden: You are a counterbalance — I should bite my tongue — to the Department of Justice to some extent. It would be useful to have an indication from you and your people as to what that section does. Of course, we will get an explanation from the Department of Justice as well.
Ms. Bernier: We would be pleased to do so.
Senator Bryden: There has been discussion about the familial use of DNA searches. We must remember that there are jurisdictions, the U.K. being one, where DNA is taken the way we take fingerprints. What is more, if you want to get DNA, you stop someone at a stop light and you can get it. What is more, once you get it, the only people who can take it away or put it away are the police themselves, unless I have read everything incorrectly.
Certainly, the indication I found from the oversight committee for this act was there is no appetite in that committee — at least for the judge who was here — to have that system in Canada.
Senator Wallace, I know where you were going. We must look after the victims here and the interest of the public good and so on, but it is possible to go too far one way. It is unfortunate for the people in Britain that they do not have a Charter of Rights and Freedoms. That is my shot for the night.
The Deputy Chair: As I mentioned to the witness, I will write to the witness and ask the question.
Senator Angus: Is it a question of statutory interpretation?
The Deputy Chair: We will put the question to the witnesses and they will have time to reflect and consult with their legal counsel. We will see their answer and compare that with the answer we receive from the Department of Justice.
Senator Dickson: I have a special interest in the missing person index. What would be the privacy concerns if we were to cause a missing persons index to be developed?
Probably the best way to answer is in your written submission later to the chair, but if you want to give us your quick shot at answering, I would be happy to hear it.
Mr. Baggaley: A consultation was held in 2005. We responded to that consultation and said that we would not be opposed to the creation of such an index.
Our concerns around an index of missing persons would relate to such questions as would it be possible to use the index and would it be cross-indexed with the forensic DNA Data Bank?
In our view, an index of missing persons should be a program primarily designed for humanitarian purposes, to identify remains, to help families. Therefore, we would be reluctant to see it linked to the forensic database. That would potentially solve the issue of the West Coast feet that I know you discussed in a previous meeting.
Senator Milne: You appeared before the committee in the other place in February 2009. I understand that you asked for some information from the federal government supporting the rationale for expansion of the data bank through the passage of the Anti-terrorism Act and then again through Bill C-13. Have you received that information?
Mr. Baggaley: When Bill C-13 was going through the legislative process, our commissioner wrote a letter to the Minister of Justice at the time, Irwin Cotler, asking for an explanation for why various offences were being added. We were hoping for something that was a bit more scientific. The answers we received were ``provincial officials urge that these offences be added,'' and ``the consultation we held in 2002 suggested that this provision should be added.'' We were looking for something that would either talk about the likelihood of bodily substances being left at the crime scene for these types of offences or evidence that would show that the probability of committing a certain offence leads to a more serious offence. We did not get that type of explanation; this is what we received.
Senator Milne: Just a superficial explanation.
[Translation]
The Deputy Chair: We would like to thank you for coming and helping us with our study, but there are still a number of questions that need to be answered. Our researchers are good, and we hope that their work is productive, so we will send you those questions in writing.
[English]
We thank you, Mr. Baggaley, for your participation in our effort.
Senator Banks: When you write, in addition to asking whether ``a criminal offence'' trumps the 16 list, would you also ask the question about who determines ``necessary to a criminal investigation''?
The Deputy Chair: Ultimately, it is Parliament but we will ask the question.
Ms. Bernier and Mr. Baggaley, thank you very much.
[Translation]
Honourable senators, we will continue with our study of the provisions and operation of the DNA Identification Act (S.C. 1998, c. 37).
Our next witnesses are from the Office of the Auditor General of Canada. They are practically committee regulars. We have Sheila Fraser, Auditor General of Canada and officer of the Parliament of Canada, accompanied by Hugh McRoberts, Assistant Auditor General, and by Gordon Stock, Principal. We welcome you all to our committee.
First, we will listen to your opening remarks, and then we will ask questions. If any questions remain unanswered or if you wish to address certain topics in more detail, I will send you something in writing so that we can complete our work. That will give you a chance to answer the question or questions more thoroughly.
[English]
Sheila Fraser, Auditor General of Canada, Office of the Auditor General of Canada: Thank you for inviting us to discuss Chapter 7 of our May 2007 report entitled Management of Forensic Laboratory Services — Royal Canadian Mounted Police. With me today is Hugh McRoberts, Assistant Auditor General; and Gordon Stock, Principal, who were responsible for the audit.
We undertook the audit in response to a request from the House of Commons Standing Committee on Justice and Human Rights after it heard conflicting testimony in 2004 and 2005 on the performance of the Forensic Laboratory Services of the RCMP. The audit followed up on issues raised in our previous reports in 1990 and 2000.
[Translation]
Our 2007 audit focused on three aspects of the management of Forensic Laboratory Services: backlogs and turnaround times in DNA analysis cases; the quality assurance process followed by the FLS to manage test results; and performance reporting to Parliament.
We did not assess the quality of the scientific decisions and analyses leading up to the lab results. Nor did we assess other RCMP functions or the National DNA Data Bank.
In our 2007 chapter, we noted that the RCMP had made some changes since our 2000 audit. It adopted a work process where certain labs handle certain functions such as biology requests, for example, DNA analysis, toxicology, firearms, trace evidence, counterfeits and document review.
In addition, staff members were assigned to different steps of the process, namely, case receipt, evidence recovery, analysis and reporting.
We found that the FLS management did not respect targets for completing and communicating analysis results. And, in some cases, staff changed the due date on service requests, making it appear as if the FLS was meeting targets when, in fact, they had simply been altered.
Consequently, this type of approach made it impossible to adequately measure performance. Furthermore, the FLS management did not consult with provincial or municipal police forces, or its other clients, to find out if it was meeting their needs in terms of priority laboratory services and service standards.
[English]
Our 2000 report found quality assurance processes at FLS to be weak. Accreditation of laboratories and proficiency tests of scientists were out of date. By 2007, it had taken action to correct these deficiencies. However, when there were quality issues, management did not always follow up and did not ensure that corrective measures were implemented.
One such example was the introduction of a new automated process for DNA analysis in September 2005. The automated analysis uses robots at certain stages of analysis to increase the number of samples that can be processed at the same time. Shortly after its implementation, quality concerns were expressed to senior management concerning inconsistency of results between the automated and manual processes. However, the FLS did not identify this as a quality issue until October 2006.
We also raised concerns about the validation and implementation of the automated process. While the process had been reviewed by the FLS staff, it was not subject to an external peer review that would provide independent assurance to management that the process was operating properly, prior to its implementation. Our chapter also noted that the FLS performance measurement systems were weak and that it was not reporting to Parliament on its performance as promised.
While we have not conducted specific audit work of the FLS since our 2007 audit, we have reviewed the FLS progress reports and the RCMP departmental performance report for the year ended March 31, 2008. I am encouraged to see that they appear to be working hard in response to the deficiencies noted in our report. We plan to perform a status report or a follow-up audit of the Forensic Laboratory Services reporting to Parliament in spring of 2011.
Mr. Deputy Chair, we thank you. This concludes my opening statement. We would be happy to respond to committee members' questions.
[Translation]
The Deputy Chair: Do your colleagues have any comments? No? Fine.
[English]
Senator Milne: Ms. Fraser, I thank you for coming here tonight. Your paragraph 10 is the only possible reason that I could see that you are here. I apologize if we brought you here unnecessarily.
You have concerns about the automated processes for the DNA analysis. They have gone in this direction to be able to test many more samples of DNA in a much shorter period of time. Have you anything further to say on that or is it still a matter of concern to you?
Ms. Fraser: As I mentioned, we have not done any follow-up work since October 2007. At the time, though, the scientists noted that the automated process did not always detect DNA when it was present, which would have been detected in the manual process. I think that was essentially the main issue, that the automation was not detecting the DNA. We go into more elaboration of that in the audit itself.
One of the main concerns we had was that these quality issues were being raised for a long period of time. Even though they had a quality assurance process in place, they were not actively managing these issues to try to identify the causes of the differences and how to address those causes going forward.
Senator Milne: Do you plan to audit the DNA laboratory?
Ms. Fraser: We will be doing a follow-up audit. In the follow-up audit, we look at the recommendations that we made in the previous audit and then specifically audit to see if the department or agency has done what they committed to do at the time of the original audit.
Senator Milne: I am glad that you will do that, but one of the concerns that I have is that it is not only the National DNA Data Bank but the laboratory does samples from provincial laboratories as well, such as the one in Quebec and in Ontario and many smaller forensic labs around the country.
I know it is not in your jurisdiction to look at audits of these smaller labs, these provincial or private labs, but do you know if, say, the provincial labs have been audited at all by your provincial counterparts?
Ms. Fraser: I am afraid that I do not have that information; we are not aware of that. I do not know that we would have looked at that in this particular audit. Mr. Stock might be able to answer.
Gordon Stock, Principal, Office of the Auditor General of Canada: We did not look at that in this particular audit. We do not have information here but we could find out for you if the provincial auditors general have done that work in their own jurisdiction.
Normally, the RCMP labs do not test for Ontario and Quebec. Normally, it would be Ontario and Quebec labs that would be doing that on their own.
Senator Baker: I wish to thank the witnesses for appearing here tonight and to note that they are doing a great job for Canada.
Ms. Fraser: Thank you.
Senator Baker: We wish you had another 10 years.
Ms. Fraser: No. One 10-year period is enough.
The Deputy Chair: Note the witness is shaking her head.
Senator Baker: You will note, Mr. Chair, that the witness said that 10 years is enough.
The Deputy Chair: Yes; the body language was similar to that.
Ms. Fraser: For all concerned, I think 10 years is enough.
Senator Baker: The one thing that stands out in your report for an ordinary person reading it is given in small print on page 23. I want to read it into the record.
It states:
The FLS received exhibits from a murder investigation. One sample drawn from a suspect was to be used as a known sample. After the sample was examined, the analysis was rerun to confirm the profile.
We have one profile, now we will get a second profile. You continue:
The second profile was not consistent with the first. The scientist responsible for the analysis raised the lack of reliable results as a quality issue. This issue was never formally identified as a quality issue or even addressed through the quality management system.
Senator Baker: At the beginning of your address, you said, at paragraph 4 ``We did not assess the quality of the scientific decisions and analysis leading up to the lab results.''
Well, that may be correct, but you certainly did assess the quality of the lab results. This lab result is somewhat alarming. Could you comment on it? The point is that if you have a sample of blood from a murder scene the first profile says one thing and the second profile does not match. That seems to be a pretty serious matter of quality.
Ms. Fraser: Yes, I agree with the senator that this is a serious issue. We did not, as I tried to explain, audit the quality of the different laboratory results. We were looking at the system to manage, what we call the quality management system. That is, how do they ensure that there is quality within the labs? When there are anomalies or problems raised, how are they deal with?
One of the issues that we felt was serious in this process was the automated process. Many issues were being raised almost from the time of implementation. It was more than a year before they actually said that there is a quality management issue in this system.
Various scientists were raising problems such as this but it was never being identified so people never actively looked to see. It was always treated as sort of one-off.
We noted in the report — and I am sure there are people here who will know this better than I — that one of the issues that we identified that was giving them inconsistent or even tainted results was this Hemastix test strip. There is a special way that it must be used. You cannot actually put it into the sample. I am sure that certain senators will know this very well. Some of the chemicals can leach into the sample and that was tainting the results.
Those are the sorts of things that they started to identify once they actually treated it as a quality management issue and then started to look at what could be the cause of these anomalies.
Senator Baker: Of course, you have given other examples as well. Have you received any specific information that would assure us that what caused that difference in profiles of the same blood sample, that matter, has been addressed?
Ms. Fraser: No, I cannot give you that assurance. We do know that they did identify this problem with the Hemastix, but we did not go into all of the specific samples to see if they actually traced the cause of that. We wanted to assure that their quality management system identified these kinds of issues immediately and that they dealt with them and that they committed to put in place certain measures to deal with that going forward. We will only know if that has been done once we do this follow-up audit.
The Deputy Chair: In the meantime, we may do the follow-up.
Ms. Fraser: Mr. McRoberts wants to add something.
Hugh McRoberts, Assistant Auditor General, Office of the Auditor General of Canada: As at the conclusion of our audit, the issue on that one remained unresolved. That is a question that at some point you might want to direct to the RCMP.
The Deputy Chair: We will zero in on that.
Senator Campbell: Thank you very much for coming here today. I note that in your 10 years you did not get time off for good behaviour.
By way of background on this subject, I was in the RCMP for 12 years and during that time, we did not have DNA evidence. There was no such thing. However, in those 12 years, I had many issues with the lab. For the next 20 years, I was a coroner, so I was involved intimately with this subject, along with the American Academy of Forensic Sciences, the Canadian Society of Forensic Sciences and the Northwestern Association of Forensic Sciences. I remember DNA evidence when it started.
When we look at DNA, we must remember that we are talking about a very young science that has been in use for less than 25 years. This came to investigators like the discovery of the fingerprint. It was that significant. While I am critical of the lab in lots of cases, I also understand.
You also must understand that, from an investigative point of view, DNA is the magic bullet. I always refer to it as the CSI effect. There have been fraud cases where the jury found the person not guilty because there was no DNA evidence. It is this magic bullet, so we expect it.
Within the realm of biology, beyond DNA, what else is involved in biology or is it just DNA with this lab?
Mr. Stock: I do not have a full list of what other biological tests are involved but they do other tests as well as DNA tests.
Senator Campbell: Do you mean other biological tests?
Mr. Stock: Yes. It could be anything, for instance, from plant material.
Senator Campbell: Some of this problem with turn-around time could be something other than DNA. We are taking the biology department as a whole.
Mr. Stock: That is correct. However, the majority of the cases are DNA and the majority of the backlog was DNA.
Senator Campbell: In 7.32 on page 12 of the report, the police were concerned that it was not timely. I can tell you that, as a cop, you want the information yesterday. It would never be timely enough for the police.
I am trying to go through this and put some context into this, from my point of view. I think it is a great report. From the point of view of an audit, it is a tremendous report.
Concerning the quality control, someone built this system; it was purchased by the federal government, and put into place. When you did the audit, was there any investigation as to what kind of training this company put out for this automation? The manufacturer would not have just dropped the machine off. Was there any indication of training?
Mr. Stock: We did look at training as part of the audit. We did not report on that training, as it was more of a side issue. It was looking at the training for the people at the lab as opposed to on the DNA equipment, specifically.
Senator Campbell: Yet the issue we have here is that the biology department — the biology section — in relation to all of the other forensic sections, is not improving. They say they get better and they tell you they get better but we know they do not.
It would seem to me that one of the issues is the training these people receive. Why would they get machinery and then, for whatever reason, not be able to use it?
Mr. McRoberts: I think part of the answer is that it was not a turnkey-acquired system. Regarding the system that was put together, some of the machines were obviously bought off-the-shelf. However, the system is actually a blending of a series of machines and processes on a protocol that was designed within the lab service itself. In other words, they sort of assembled it and put it together.
Senator Campbell: We talk about accreditation. I cannot find anywhere where these people are accredited except by themselves. I can tell you that throughout North America, the American Society of Crime Lab Directors, ASCLD, accredits most labs. I have a concern here: If you take a whole bunch of machines and design your own processes, who sets up accreditation that says what you are doing is right and, if this goes wrong, what your reaction would be? I am talking about the quality side. I thought this lab was an ASCLD lab and I am surprised it is not.
Ms. Fraser: I am not sure we looked at that specific issue. I would like to remind the committee that the audit was quite narrow because we were asked by a committee to resolve conflicting testimony. We did not go in to do a whole full-blown audit of the labs. Had we done so, we would have then looked at things like accreditation, training of staff and personnel — all those sorts of things. It was actually quite narrowly scoped.
The quality management system issues seemed to us to be important that we had to bring that forward when we came across it. However, it was a very narrow and specific audit.
The Deputy Chair: Your mandate was not to examine all the DNA bank, correct?
Ms. Fraser: No, no.
The Deputy Chair: Only the lab, correct?
Ms. Fraser: I would say the main thrust of our audit —
The Deputy Chair: I am reading at page 8 of your report.
Ms. Fraser: The summary of it is on page 31. What did government and officials say before committee, in Parliament, and what did we find in our audit? There were officials that appeared before a committee of the House of Commons who made a number of statements and then former employees of the labs came forward to contradict what had been said. Therefore, the committee asked us to audit.
Senator Campbell: On page 31, I go to your point 13 in your briefing where you state that you have not conducted specific audit work of the FLS since your 2007 audit.
Given the history of this organization, are you satisfied with their response? We will not see anything here until 2011, which is two years down the road. Given what you found on pages 31 and 32, are you comfortable with the response that they are working hard to fix the deficiencies?
Ms. Fraser: I can certainly say that at the time of the audit, the then-commissioner, Beverley Busson, took this extremely seriously. They developed a very comprehensive action plan, which was tabled in front of the Standing Committee on Public Accounts, and I think we had two or three hearings in the other place on this issue. We certainly saw the commitment by her and her senior people.
I use the phrase a lot, but we were cautiously optimistic. However, we will not know for sure until we do a follow- up. We also have to give the labs the time to put things into place. We are doing a broader follow-up, as well, so we will include it in that. The committee could certainly ask them for that action plan and a progress report on where they are in addressing the issues.
The Deputy Chair: We will.
Senator Angus: The context of having these witnesses today, as the Auditor General is saying, is quite narrow. In the document the library prepared for us, the RCMP appeared before the house committee and said the forensic lab services were amongst the best in the world, that the labs had no case backlogs and that priority was given to all violent crime cases. They said that their clients — police departments and Crown prosecutors — were satisfied. That was their testimony at the committee.
The Auditor General's people went in and checked and, if I understand, found this was not the case, to summarize.
Ms. Fraser: That is right.
Senator Angus: We are now going to the labs ourselves.
The Deputy Chair: We are.
Senator Angus: I was taken by one of your statements in your opening remarks today. Semantics are always very revealing. You said, ``I am encouraged to see that they appear to be working hard in response to the deficiencies noted in our report.''
Now, I have heard the phrase ``damning with faint praise.'' How are they really doing?
Ms. Fraser: I guess this is the caution of the auditor who will not actually say if things are better until we actually go in and look ourselves. All we have done is a review of certain documents, so we have not actually gone and tested whether the backlog is increasing or not and whether they are, in fact, presenting what the backlog really is. That was the problem: They were saying that they were meeting their time line of 30 days. However, it was significantly more than that. We can only see when we really go in to audit.
Senator Angus: Mr. Deputy Chair, I was hesitant to even raise this subject. These poor Royal Canadian Mounted Police, at the moment they seem to be getting hammered at every turn in the road. I have an image of the RCMP, as I am sure all Canadians do. There have been some unfortunate developments lately.
When I read this and I listened to you, I thought they were getting another little shafting and well deserved, obviously, because you do not go and testify that it is a super place and it is not.
Thank you for the candour and, frankly, I think it gives us a road map for our further study.
Senator Dickson: To the Auditor General, in following up on item 13 in your summary, probably I will not be here in 2011 or 2012, whenever you come again to report on your second review. Would you be more comfortable if the scope of that audit was much broader than the initial scope you operated on in preparing your last report? I feel it is too narrow, to be honest with you.
Ms. Fraser: That is something we can consider. Should we be doing a specific audit of the labs? Perhaps after we see the committee's deliberations, we can decide that, no, it is not sufficient. We had planned this as part of a broader follow-up that we were doing on a number of issues. We will see what the committee comes out with, but as well, the results of our follow-up. If we see that they have not actually done anything, then I think they would be quite due for a full audit.
Senator Dickson: As a follow-up, what is the role of the advisory committee insofar as the operation of the lab?
Mr. Stock: I do not have that information, but I can get it for you.
Senator Angus: We had them here before us, including a retired Supreme Court judge, and we were wondering really what they did.
Ms. Fraser: I am afraid we do not have that information.
The Deputy Chair: Probably they are not the best to answer that question.
Senator Milne: You have suggested that the RCMP should establish a national forensic advisory committee. What would they do, then? What would be their mandate?
Senator Milne: It is Appendix A on page 36.
Ms. Fraser: This was in connection with the consultation with clients and in setting performance expectations, I believe.
Mr. Stock: I believe that is correct. One of the points that we made within the chapter was that they did not perform sufficient consultation with their clients in order to determine whether or not the processes that they were following were meeting the needs of the clients. It was within that capacity that we were talking about getting more advice back into the process to ensure that they were meeting their clients' needs.
Senator Wallace: In conducting your audit, you obviously felt the need to look at what other labs were doing, I am sure for your own background knowledge and perhaps to have some objective comparison to what was happening at the RCMP lab. In doing that part of your work, did you establish any specific benchmark criteria from the other labs against which you measured the DNA lab work? If you did not, do you see the need to do that so that there is always that comparison to what else is going on in those other labs and how new technologies and new techniques may be influencing them. With the establishment of those benchmarks, we could get a better sense of where we are and where we should be in terms of quality assurance.
Ms. Fraser: We did a very limited comparison, which appears on page 13 of the report, with certain other labs, for example, in Ontario, Quebec, Georgia, Florida, the U.K. and Sweden, only because we were assessing the statement that had been made before committee when they said they were the best in the world.
You can see we looked at some very basic information, such as being turnaround times. We did not go into the more elaborate benchmarking that you were suggesting. The office tends to be very reluctant to do that because we think that, in fact, the organizations themselves should be conducting this as a matter of their management improvement, and they should be aware.
I believe they participated in a group — I cannot remember the name of it — where they do share practices et cetera. They should be doing these themselves and should be able to indicate that. They should know the new techniques that are coming, the new procedures, and build that into their own operations. It might be for us to look at that and see if they are actually doing that, but for us to go out and do the benchmarking, we rarely do that.
Senator Wallace: You touched on my follow-up, and that is, would you expect in your experience as an auditor that they should have those types of benchmarks as part of their system, and if you saw that they were not in the system, that would be something you would comment upon and recommend that perhaps they should have them.
Mr. Stock: One of the aspects here that made it difficult to actually do the comparison is that the methodologies or the processes are slightly different in the different jurisdictions that we examined. It would be very difficult to come up with a benchmark that would be applicable to the different jurisdictions.
Ms. Fraser: We would certainly expect them to be aware, though, of what is happening in other jurisdictions, what are the new technologies and how are they improving their own operations.
Senator Wallace: Otherwise, what do they have to support their statement that they are the best in the world? They have to convince you of that.
Ms. Fraser: Well, the audit shows that they did not really have a whole lot to support that statement.
Senator Milne: Ms. Fraser, after your 2007 review, did you find any evidence to suggest a deficiency somewhere in the act that led to any of the concerns that you have raised? We are looking at the act right now. Can you suggest any improvements to the legislation?
Ms. Fraser: We did not specifically look at the act. The issues that we focused on were really operational issues. I do not see any of our findings that would have an impact upon legislation.
[Translation]
The Deputy Chair: Thank you, Ms. Fraser, for accepting our invitation. As I told the previous witnesses, I will check with our researchers, and if we have any questions that require more detailed answers, I will send them to you in writing. Similarly, if you feel that certain elements should be included in our evidence, please send us a written statement.
[English]
Colleagues, thank you for coming. Tomorrow we have our little fieldtrip to the laboratories. Perhaps the clerk can tell us more about that.
Jessica Richardson, Clerk of the Committee: The bus will pick us up behind East Block at 10:30, and the plan is to have all senators back on the hill by 1 p.m.
Senator Angus: At the door of the Senate?
Ms. Richardson: Yes.
The Deputy Chair: The meeting is adjourned.
(The committee adjourned.)