Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for March 17, 2010
OTTAWA, Wednesday, March 17, 2010
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:39 p.m. to examine the provisions and operation of the DNA Identification Act (S.C. 1998, c. 37).
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this session of the Legal and Constitutional Affairs Committee.
Before we get into the interesting portion of the meeting, we have a few items of committee business to dispose of. If honourable senators will turn to the packages in front of them, I will ask colleagues to propose a series of motions to adopt these various items, and of course, we can always discuss them, if any senator wishes to do so.
The steering committee has considered and approved all of these budgets and the draft report under rule 104. The committee does not necessarily govern senators, although we hope you will agree.
The first item is the blue budget, the blue packet, which is the special study budget. That study is on the DNA Identification Act. In a few minutes, we will continue on that study, which has a massive budget. We are asking for $2,575.
Senator Angus: It fits within the definition of budget — petty cash.
The Chair: If you look at one of last year's reports, we spent nine hundred and some dollars.
Senator Angus: We are spending more on the colour coding of the documents. What is going on?
Senator Joyal: I suggest we freeze the budget.
The Chair: The most significant element in that budget is for attendance at a conference on DNA in Toronto in about 10 days. We will talk about, among other things, parliamentary reviews and some of the new information that is becoming available about DNA. Therefore, we have asked our lead researcher Jennifer Bird to attend that conference for us. The Library of Parliament may pay for it, but in case it does not, we would like to get approval for the budget. Are there any questions?
Senator Carignan would like to go, but he prefers to use his own office points, and the conference organizers have graciously offered us two free spots, so the cost would include travel and accommodation only. Any other senator who wishes to attend the conference is encouraged to do so.
Senator Angus: Will you be going, Madame Chair?
The Chair: I unfortunately have a prior commitment; otherwise I would have been there with bells on. It looks interesting.
Senator Angus: Do you need a motion? I would be pleased to so move.
The Chair: It is moved by Senator Angus that the special study budget be adopted and that the chair or designate present that budget to the Standing Committee on Internal Economy, Budgets and Administration.
All in favour? Opposed? Abstentions? Carried.
Next is the yellow packet, the legislation budget for the coming fiscal year, which is a slightly larger amount of money, $23,750. That money is for bills, what we believe we will spend on the study of bills.
Senator Angus: In two weeks?
The Chair: No, that is for the coming year, the following year. We are grand spenders around here, but we cannot spend that in two weeks.
For senators who are wondering, meals, you may recall, are no longer counted out of committee budgets. That is out of the general Senate service budget, so we do not have to budget for meals we will eat when working at mealtimes. Are there any other questions? Could I have a motion to adopt? Moved by Senator Baker. Agreed? Opposed? Carried.
Next we turn to the green packet. This is for the special study on the DNA Act for the next fiscal year. It requests a total amount of $21,260, and the motion should also specify that the chair or designate present that budget to the Internal Economy Committee.
The budget we have built in is more a matter of prudence than anything else. We do not actually plan to go on studying this bill until we all retire from the Senate. We hope to get this study done quite expeditiously, but it seems a matter of general prudence to allocate some budget to it just in case.
Questions? Discussion? A motion?
Senator Lang: So moved.
The Chair: Senator Lang. All in favour? Opposed? Carried.
The white package is our first report. This is the 104 report that talks about what we did last year and not only what we actually spent, which was in total well under $50,000, as far as I can see.
Honourable senators who are new to this committee may find it interesting. This report includes a summary of what we did last year, and that is sometimes quite interesting. We did, in my view, quite a bit. Are there any questions about this report? If not, could I have a motion?
The Chair: Senator Boisvenu. All those in favour? Opposed? Abstentions? Carried.
Senator Joyal: I know we have just approved the last item, but did we approve that you be authorized to table it in the Senate?
The Chair: We probably did not. It is part of the general motion, but I did not say it out loud, so would you make a separate motion for my authorization?
Senator Joyal: I move that you report in the Senate so that it is clear that it will be tabled in the chamber.
The Chair: All those in favour? Carried.
[Translation]
Welcome to the Standing Senate Committee on Legal and Constitutional Affairs. As the beginning a new legislative session, we resume our study of the provisions and operation of the DNA Identification Act.
[English]
As you will recall, we have done some work on our statutory review of this very important legislation. Our work on that review was interrupted in the last session of Parliament because we had to study a number of government bills, which always take priority in a Senate committee. Now we have the opportunity to renew our study of this bill.
The bill received Royal Assent in December 1998 and was proclaimed into force in 2000. Since then it has been amended three times. On March 16,2010, we were authorized to continue our study.
[Translation]
Today, we welcome Mr. Ronald M. Fourney, Director, Forensic Science and Identification Services, Royal Canadian Mounted Police.
[English]
Welcome back. You are getting to be quite a regular at this committee, Dr. Fourney. We also have Mr. Peter Henschel who is the Assistant Commissioner, Director General, Forensic Science and Identification Services at the RCMP. We are very glad to have you both with us today to get us off to a good start in this renewed phase of our study.
Peter Henschel, Assistant Commissioner, Director General, Forensic Science and Identification Services, Royal Canadian Mounted Police: Thank you, Madam Chair. Honourable senators, it is a pleasure to be invited to speak to you today.
[Translation]
The Forensic Science and Identification Services of the RCMP provide a whole range of services including the analysis of crime scene evidence and the management and maintenance of the National DNA Data Bank.
As you know, DNA analysis of evidence and the National DNA Data Bank have become incredibly useful tools over the years in helping to resolve crimes and to exonerate innocents.
[English]
I would like to take this opportunity to speak about the improvements that the RCMP forensic lab has made to our forensic DNA analysis services, which we refer to as biology services or operations, following the recommendations from the 2007 Auditor General's report.
Dr. Ron Fourney is here with me today, and he will be speaking to the science of DNA and the National DNA Data Bank, which is a separate and distinct entity from biology services.
The relationship between biology services, or the RCMP forensic lab, and the National DNA Data Bank is similar to that which the Centre of Forensic Science in Ontario and the Laboratoire de sciences judiciares et de médécine légale du Québec has with the National DNA Data Bank. All three forensic laboratories provide DNA profiles from crime scenes to the National DNA Data Bank for entry on to the Crime Scene Index for comparison with other crime scenes, as well as with convicted offenders on the Convicted Offenders Index.
Following my appointment to the position of assistant commissioner, Forensic Science and Identification Services, in November of 2008, we reviewed our key services and our progress with respect to the recommendations from the 2007 Auditor General's report. Although efforts had been made to implement the individual recommendations, only limited progress had been made and many of the intended results were not being achieved.
As a result, we initiated a major transformation of Forensic Science and Identification Services to improve service delivery through a whole systems approach to forensic investigations and to ensure that our efforts were focused on client needs.
[Translation]
The transformation of the Forensic Science and Identification Services includes two major components: creating a new forensic investigation process and changing the corporate culture on the basis of the changes implemented at the RCMP. We have developed our forensic investigation processes in cooperation with our clients and stakeholders.
It is a simplified and interactive tool allowing us to detect and analyze crime scene evidence in a timely manner, according to the needs of our clients.
[English]
We then developed a strategy to test and evaluate this new forensic investigation process through a phased pilot project, which would allow us to learn from the interim results and make any necessary adjustments before proceeding to the next phase.
It was designed to be rolled out in three phases, with additional clients and complexity being added at each phase. This was to be followed by a national rollout scheduled for 2011. This pilot project was also intended to run in parallel with ongoing lab operations, but in a controlled environment with dedicated resources and a defined client base.
Phase one of the forensic investigation process pilot was launched in the Atlantic region on September 22, 2009 and we expanded it to include Manitoba and Nunavut in January 2010. There are many positive signs to demonstrate that the pilot is meeting with significant success. Clients are pleased with the easy access to a forensic expert to discuss their cases, to negotiate diary dates and receive preliminary results, and with the assignment of a single point of contact for case follow-up and updates. Improvements to service delivery also include streamlined case acceptance and workflow processes that have helped to significantly reduce turnaround times.
Although the pilot currently covers only approximately one third of our client base as it is still in its first phase, after six months of operation, DNA service requests have been completed with an average turnaround time of 15 days for priority cases and 30 days for routine cases. This is a significant improvement over the old system.
Despite these encouraging preliminary results, we realize that many challenges and risks remain for the successful implementation of the next phases of the forensic investigation process. In particular, the ability to sustain this new model with the increase in workload and complexity of cases that will come from the Western provinces will need to be tested and established. We are, however, committed to meeting this challenge through the dedication and hard work of our employees, and by continuing to work closely with our clients as the pilot project proceeds.
In the interim, we have also realized some performance improvements in ongoing biology operations by adopting some of the streamlined workflow processes from the new forensic investigation process.
[Translation]
In conclusion, let me add that the improvements of the past year have been made in a context of budgetary restraint and expenditure reduction.
That being said, we still have much to do and many challenges to face.
[English]
Again, I thank you for this opportunity to speak with you and I would be pleased to respond to any questions. If any committee members have not yet had the opportunity to tour our biology services and the National DNA Data Bank, I extend my invitation for such a tour if it would be of benefit to the committee's work.
Ronald M. Fourney, Director, National Services and Research, Royal Canadian Mounted Police: It is certainly a privilege to be called again and talk about the National DNA Data Bank. For the benefit of those who were not here when I last appeared before the committee about a year ago, I would like to give a brief overview of the National DNA Data Bank.
The National DNA Data Bank is a program that falls within the scope of the National Services and Research Directorate of the RCMP's Forensic Science and Identification Services. It consists of two indices, essentially the Convicted Offender Index, COI, containing the DNA profiles developed from biological samples collected from convicted offenders, and that is analyzed by the National DNA Data Bank; and of course the Crime Scene Index, or what we call the CSI, containing DNA profiles obtained from biological samples collected at the crime scene.
RCMP laboratory sites, as well as our provincial laboratories partners in Ontario in Quebec, work collaboratively to contribute to the DNA information entered into the Crime Scene Index. Matches between these two indices link crimes where there are no suspects, help to identify suspects, eliminate suspects where there is no match, and determine if there is a serial offender.
Next year the National DNA Data Bank will be celebrating its tenth anniversary. As we look back we note that we started with a small indicator of success with 18 offender hits in our first 11 months of operation. That has now expanded to more than 1,000 offender hits every four months.
The policing community has become reliant on this important tool to focus on the investigation by providing evidence that not only assists in the conviction of the guilty, but also protects the innocent when crime scene DNA profiles do not match known offenders' DNA profiles.
Today's National DNA Data Bank statistics indicate that we have made over 2,153 matches between crime scenes and 14,435 matches between crime scene convicted offender profiles. This has assisted in the investigation of over 989 murders and more than 1,892 sexual assaults. New offences, such as those covered under the Controlled Drugs and Substances Act, following the full proclamation of the DNA Identification Act in January 2008, resulted in 95 offender hits in the National DNA Data Bank. Many included serious offences, such as 24 murders, 21 sexual assaults and 13 attempted murders.
The National DNA Data Bank has also enabled us to reach back into the past, like a justice time machine, and provide assistance in unsolved older cases. One case in point that illustrates this was a sexual assault and murder of an 83-year-old senior citizen that occurred in a large city in Alberta in 1987. In 2000, a DNA profile developed from that crime scene of the old case was entered into the National DNA Data Bank Crime Scene Index. In late August 2009, a new convicted offender DNA profile was processed here in Ottawa at the National DNA Data Bank, and more than 22 years after this horrific offence occurred, a match was made. This truly demonstrates the power of this technology, the integrity of DNA across time, and the dedication and determination of good police investigators.
I will try not to take too much more of your time since I know the committee must have many questions. What I can tell you is that science is never static and there have been many new and exciting changes to technology since I last appeared before your committee. Many of these new technologies will have a direct application to forensic science. We have optimized our new technology to successfully derive profiles from highly compromised biological samples from smaller amounts of biological evidence and, more recently, to assist in the ongoing identification and repatriation of the victims of the Haiti mass disaster.
This year the National DNA Data Bank will begin to validate and replace its aging DNA sequencers with new state-of-the-art high volume DNA analysis equipment that can detect smaller amounts of DNA and can process 960 samples over a 24-hour period without human intervention.
We are also looking into the more immediate future, by collaborating in the design and evaluation of a single sample DNA processing unit that is portable, self-contained and capable of running in the lab or at the crime scene. Although we are at the early stages of this promising new DNA technology, we hope to be one of two labs in the world that will begin testing this in the late fall of this year.
Overall, forensic DNA analysis is as exciting today as it was more than 20 years ago when our first case went to court here in Ottawa on April 10, 1989. I look forward to our discussion and your questions.
Senator Wallace: Mr. Henschel, I am interested to hear about your work with the new forensic investigation process. As you point out, that work was at least in part in response to the Auditor General's report of May of 2007. The Auditor General raised a series of issues that involved the new investigative process. Did you address those issues or did you go beyond?
The Auditor General commented on turnaround targets and raised issues involving the resolution of quality issues. Insofar as this new process relates to the Auditor General's work, does it address the turnaround targets and the quality issues?
Mr. Henschel: To answer your first question, this new forensic investigation process takes into consideration the Auditor General's recommendations, but it goes beyond. One of the concerns we had when we looked at why we were not making the progress we need to make is that implementing them on a one-by-one basis or adding them on to what already existed was not necessarily addressing some fundamental issues.
We took the Auditor General's recommendations and some recommendations from other studies. We designed a new process and asked the following: If we start with a blank piece of paper and map the process in a way that would make the most sense and that would be streamlined and would meet our clients' needs, what would it look like? That is the genesis.
I mentioned in my opening remarks that it was a whole systems approach. As opposed to trying to fix one piece here or there, we looked at the whole system. Just the lab process itself is an incredibly complex system, without looking beyond into the forensic and policing side and the other components that play into it. We wanted to use that systems approach and address it from that perspective. Taking that approach was almost breaking down the old system and starting with something new.
With respect to the question about addressing turnaround times and quality issues, it looks at all of those things. As I mentioned, the early success has shown us some phenomenal results in turnaround times, 15 days for priority and 30 days for routine. For routine cases, we are setting 40 days as our standard turnaround time. We are more than meeting that goal. That is considerably better than it was at the time the Auditor General report went through and better than the old process. I am talking sometimes hundreds of days better, so it is a significant improvement. That will continue to be our target, and it should address the issues raised by the Auditor General regarding turnaround times.
Some of the quality issues were already addressed before we started this new process. One of the underpinnings of this new process is that quality must not be sacrificed for timeliness or anything else. That basic quality ensures what we are doing is defendable in court, accurate and cannot be compromised. We have put processes in place to address some of the weaknesses that existed before the Auditor General report in 2007, and we have a national quality manager who oversees all quality issues. He has direct reporting relationship to me so that I become aware of any quality issues that need to be addressed. Those issues are tracked, monitored and followed through a process to make sure they are addressed. If a corrective action is required, it is taken.
Senator Baker: I would like to congratulate the witnesses and the RCMP data bank for the great job they are doing. However, the House of Commons Committee on Justice just a couple of months ago, gave a report to the Minister of Justice and the Attorney General of Canada. In that report, Garry Breitkreuz, as chair, and the committee said that you are currently inadequately funded, which is causing significant delays in the analysis of DNA samples. That was in the House of Commons in June of 2009.
The minister, Mr. Nicholson, in a tabled response in the House of Commons, said that the recommendations made by the House of Commons committee are acceptable to the government.
Have you received any indication of an increase in funding? Do you expect to receive an increase in funding? I presume you know what I am talking about, namely, the recommendations of the House of Commons committee and the answer from the minister.
Mr. Henschel: I am aware of the recommendations from the House of Commons committee. I am also aware that the recent budget indicated that the government would provide more funding for DNA work. We are still waiting for confirmation as to the precise purpose for that funding.
Senator Baker: Has counsel sitting behind you — particularly Mr. Yost, who is an expert in legal matters — advised you not to comment before this committee on the recent determinations of the Ontario courts that suggest you have not met the requirements of the act by not destroying certain samples? Have you been advised not to answer questions concerning that before the committee?
Senator Angus: There are considerations of solicitor-client relationship.
Senator Baker: Says the master solicitor, Senator Angus.
Let me ask you, then, what your response is — if you wish to give a response — to decision by an Ontario justice that the figures that she examined are evidence of a data bank failure to comply with the provisions of the DNA Identification Act. The judge has found that you are a supposed to, by law, destroy samples, but you are not doing it. Do you have a response?
Mr. Henschel: Yes, but first, I will caution that the case is still before the courts, so we are not able to comment on it. However, we have done work to look at whether or not we were in compliance with legislation, and that work has been done. I will ask Dr. Fourney to provide the response to that question.
Mr. Fourney: Yes. I think it was last March when I was here when this was brought up for discussion. The case you are referring to —
Senator Baker: Is presently under appeal, is it?
Mr. Fourney: That is right. It is R. vs. S. (C), but this is now under appeal by the Office of the Attorney General of Ontario.
You may recall, senators, that I provided an update for you on June 18, which itemized the number of samples that we had received from young offenders up until that period of time. I went through it in quite a bit of detail indicating which ones had to be taken out and which ones remain. In the end, the conclusion is that we are completely compliant with the provisions of sections 9, 9.1, 10 and 10.1 of the DNA Identification Act.
Senator Baker: You say you are in compliance, and the judge came to the conclusion that you were not. I guess we will have to wait for the appeal. You are saying on the record here that you are in compliance?
Mr. Fourney: That is correct.
Senator Baker: However, you do not want to comment on the legalities of something that is before the courts; is that correct?
Mr. Fourney: That is correct.
Senator Baker: Provincial police forces sometimes ask the bank to do DNA analysis for purposes of criminal investigations. Your office sometimes sends them a letter saying that you cannot do an analysis because that force is allowed only a certain number of cases per financial year and they have used up their quota, but that you will hold their samples for another 10 months and see if you have enough money to do the work then.
Do you have any comment on that?
Mr. Henschel: I first want to make a small correction. It is not the DNA data bank that does that work; it is the forensic lab that does that work.
Senator Baker: The RCMP?
Mr. Henschel: Yes, the forensic lab, not the National DNA Data Bank.
Senator Baker: You are the director general, are you not?
Mr. Henschel: Yes, I am. I wanted to clarify that so that there is no misunderstanding. It is not Dr. Fourney's area that actually does the analysis of crime scene exhibits. That is all done by the forensic lab.
Yes, there are quotas on secondary offences under the biology case work agreements that are in case. The quotas were established based on the amount of capacity for work.
In the new forensic investigation process we have removed those quotas.
Senator Baker: As of when?
Mr. Henschel: As of September 22 for the Atlantic region and January 12 for Manitoba and Nunavut. Currently from Manitoba East there are no quotas. As we go to the next phase of the forensic investigation process, the other quotas will disappear.
Senator Baker: That is good news.
There have been suggestions that the DNA investigative provisions be extended to allow an accused to ask the RCMP to analyze their DNA to prove their innocence. As I understand it, you cannot do that under the present act. There has been a recommendation from the House of Commons that you do it.
Do you have any comment?
Mr. Henschel: I am not sure if I understand the question correctly. I am not sure if you are asking whether we would take a sample from the accused to check that, but that happens all the time. The investigator would want to take a sample from the accused, and we would analyze that sample.
Senator Baker: Do you know the recommendation I am talking about from about four months ago by the House of Commons standing committee?
Mr. Henschel: I do not recall that one specifically, but Dr. Fourney has it here.
Senator Baker: Would that cost you additional resources?
It is on page 13 of their list of recommendations, which were sent in June. In the second-last paragraph, they recommend that we "Amend the Criminal Code to allow a suspect of a designated offence to voluntarily provide a DNA sample for an exoneration test."
I know that you have not had time to think about this, but would this cost you additional resources?
Mr. Henschel: I want to read this to ensure I understand it correctly.
I do not see this having a significant impact on our current capacity. In a normal investigative procedure, the investigators will want to get a DNA sample from the accused or the suspect. They may not have the legal grounds to do so. In that case, if a person wanted to offer a sample, they would take that sample and we would process it. It is a standard investigative technique. I do not see how that would impact our operations in a significant way.
Mr. Fourney: I was puzzled, too, when I first read that recommendation, but I seem to recall that the committee discussed a number of different elements associated with this item. One was to enable a victim to volunteer a sample into the National DNA Data Bank for many purposes to do with comparison and Crime Scene Index.
The volunteer situation might have followed on from earlier discussions about other countries where they have done a sweep of a number of individuals who could potentially have contributed to a crime scene and have taken samples from a number of them.
We do not do that in Canada, but I think that in the U.K., for example, they often look for people who could potentially have been at a crime scene, and they sequester those samples. In such cases they often get a lot of volunteers because people believe it is better to have a sample available for immediate exoneration than to go through a major investigation. That may be what it pertains to.
Senator Baker: Madam Chair, the House of Commons has suggested that we do this. A clear reading of the recommendation would be in order. It is to allow a suspect, not an accused, of a designated offence to voluntarily provide a DNA sample for an exoneration test. In other words, a suspect who has not been asked to provide a sample may ask the RCMP to do a DNA test in order to clear the suspect from suspicion.
Mr. Fourney: I think that happens all the time.
Senator Baker: Do you do it voluntarily?
Mr. Fourney: It is part of the investigation.
Mr. Henschel: I do not see anything that legally prevents us from doing that now. I agree with Dr. Fourney. I am not sure of the intent of that recommendation.
Senator John D. Wallace (Deputy Chair) in the chair.
Senator Angus: Welcome gentlemen. I would first like to offer my condolences to you and your colleagues. You mentioned the work that was being done in Haiti following the tragic earthquake. I know that you lost at least one of your brethren in that terrible circumstance.
Mr. Henschel: Thank you.
Senator Angus: We have been given a copy of an article from page A4 of The Globe and Mail forensic science section of Saturday March 13. The author talks about the possibility, and the occasional injustice because of contaminated samples. The article offers some graphic illustrations.
I am a great believer that accidents happen, but this looked like a serious situation where the technician not only transferred some of her own DNA onto the ring, but some other DNA as well. The accused ended up going to prison for some 27 months based on the technician's findings.
I do not want to make a big point of this, but advise you, that when you receive this type of bad publicity, you must have an explanation.
Mr. Henschel: I think there are various points to this article. I am not a scientist and it would be more appropriate for Mr. Fourney to comment. If there is anything for me to add on, I will do so later.
Mr. Fourney: It is certainly unfortunate when these things happen. We try to prevent any kind of cross-contamination within a sample, for instance, or in a case of this nature.
From what I recall — and I do not know the specifics of this case — it was quite a few years ago, and I think it was an older technology as well. It was during the RFLP days, which was before the current process.
It is still not an excuse for contaminating one sample with another, but the incident took place before accreditation was in place. We are now an ISO 17025 accredited lab by an international accredited standard. We made many changes in our procedures in receiving, separating and processing the evidence.
We have significantly more controls in place, not only because of the need for prevention of contamination but also because our technologies are so much more sensitive these days that the slightest amount of carryover or whatever can cause problems with the DNA analysis. I would say we have a heightened response to the whole process, and we have a very good accreditation system that is accepted worldwide.
Senator Angus: I am glad to hear you say that. In this article, they have a number of striking, attention-grabbing illustrations that would tend to undermine the public's confidence. I think your explanation is a good one; and I would like to have your assurance on the record that this type of contamination, in the modern circumstances under which you operate, does not happen anymore.
Mr. Fourney: I will point out that human error is always present, but we do everything possible to avoid it. Besides being accredited, our people are proficiency tested twice a year. They have to meet a high standard. There is a dual review of every type of case, for instance, that goes through the process. If there are any questions with regard to a sample or a result that is of concern, it is reviewed and often reprocessed.
I would say that we and most laboratories in the world are undergoing a significant amount of quality assurance associated with the technology, simply because of the sensitivity of the procedures.
Senator Angus: As we know, and for the new senators on the committee, this process is a statutory review, which is particularly apropos in statutes of this nature, which are relatively new and evolving. We have covered most of this ground before; but under the act and the report we will make in terms of recommended changes, if you had your choice, what would be the top three things you would like to see changed, if any?
Mr. Henschel: I think those are policy issues for the government to determine, and it is difficult for us to say. We are here to implement the act.
Senator Angus: One of the purposes of the review, if I understand it well — and I have been through many of them — is to see if the statute, as drawn and as operative, is working correctly, and if there are problems for the people who have to implement it because of the provisions therein contained. I am just saying you people have to administer this law.
You have told us all the good things that are being done, the evolution of the science, but perhaps the question could be framed another way: Is there anything that is bad, which makes this a difficult or awkward piece of legislation for you to work with? I do not think it is politically incorrect to answer that question.
Mr. Henschel: I think it has been raised in previous discussions here or on the House side, issues such as to whether convicted offenders that should perhaps be in the data bank actually wind up there because of the administrative process and how that works to have an order to take someone's DNA sample. That would be one thing that has been raised that is certainly, from a policing perspective, an extra administrative burden and also one that slips through the cracks at times. That issue would be worth looking at.
Senator Angus: And it would be helpful?
Mr. Henschel: Yes, it would be helpful from the operational policing perspective.
Senator Angus: You heard the evidence from the woman from British Columbia. She discussed keeping the DNA of missing persons on the record in the register. Is there something in that area that is of interest?
Mr. Fourney: It is sort of like a wish list.
Senator Angus: This is your chance, every five years, to come to the well.
Mr. Fourney: I am talking from a strictly scientific perspective, as well as a practical perspective. I certainly agree with Assistant Commissioner Henschel that the current process for collecting samples is quite cumbersome. It was originally constructed the way it was for many reasons — for protection of privacy, security — to essentially walk before we run. How is this data bank working? What are the safeguards? Are they proper?
We have almost 10 years of experience, so we know that the proper procedures are being followed. If you look at the average investigator who has a lot of other things that he has to do, having to also go out and get a sample and follow all the procedures and the court processes, is cumbersome. I think there are 13 different forms; there are many different checks and balances that have to be made. This becomes time-consuming and difficult for them when they are trying to do other things. I think decreasing the cumbersomeness of the collection process is important.
The comment that you made about the samples, for instance, alluding to the victims, that has been brought up by a number of different groups, including our own National DNA Data Bank Advisory Committee, which I believe might have been before you, or it might have been in the other House. They have indicated a number of times that if a person has fallen victim to a particular crime, for instance, and there may be some evidence associated with that victim that could be used to help focus an investigation or even exclude or exonerate someone else, we cannot put a victim's DNA sample into the Crime Scene Index for screening.
I will give you an example of a series of sexual assaults in Western Canada. The first assault occurred on a young female. The accused had pulled a sweater over that individual's head so she could not see the perpetrator, and then assaulted her and took the sweater. He went to another victim later on, used the same sweater from the first victim and also assaulted this woman. She, too, could not see the perpetrator. During the third assault, the perpetrator used the same sweater. This sweater has been present at three crime scenes.
When we processed the crime scene on that sweater, we found hair, but the hair did not match the third victim; it matched the first victim. We could not put the DNA into the Crime Scene Index and it took a lot of truly good investigative technology to figure out there was a link between the serial cases. However, if that crime scene sample had enabled us to put the victim's sample in immediately, and we had all the other victims in there, it would have linked those three crimes together.
The victim would have probably volunteered a sample. Remember, even today, a person can volunteer to do DNA analysis but it must be destroyed. That is in the act itself. In this particular case, we would like to see a provision to allow a victim under proper consent to be able to give that sample.
There are other instances, as well. Say there is an indication that a person had been murdered at one scene, and a headless body — essentially an armless, legless, headless torso — was found. That is the victim and also a key piece of biological evidence to link to the crime scene. We cannot track the crime scene because we cannot track the victim's sample.
The other thing is that one has to be receptive to new technologies. Science is not static. I would hope that senators and those who are working with us to enable the legislation keep that in mind as we potentially use different types of DNA technologies in the future — more markers, for instance, and things like that. That is not saying we would do this without being responsible and acknowledging privacy and security issues. In reality, the DNA data bank is like any other bank. The biggest bang for the buck is when you have samples in there to do comparisons, and the only sample you will not match is the one that the not in the data bank.
Senator Angus: You may want to follow up on that, Mr. Chair, but I have to step out for a moment. I will try to come back.
Senator Lang: I am one of the new members of the committee, so this is all new to me.
I would like to take the witness's offer to go and see the bank and the lab at a later date, probably in a couple of weeks. It would be very interesting.
I want to follow up on Senator Angus's comments. I understand this is an opportunity for you, from a practical point of view, to give evidence of where there could be changes to the act that might make your job that much easier and hopefully provide more tools for you to do the job we have asked to you do.
I would like to ask a general question. What would we need to eliminate in this 13-step process that Dr. Fourney outlined, and what would we have to do in legislation, to make that more compatible with modern technology while, at the same time, meet our obligations regarding privacy and everything else that comes into it?
Could we have a comment from both witnesses? I look at this as a very non-political and important issue. It is something we have to continue to modernize as we move ahead, unless you tell us you do not know.
Mr. Fourney: As well as the science, it is the permission to use it in a respectful manner. The only thing I would draw to the attention of the Senate is that there is an ongoing discussion with our partners in Public Safety and the Department of Justice to look at what changes could be made for enabling legislation. Consultation is ongoing as we speak. A colleague of mine has been very much involved in that process.
Senator Lang: What are we looking at for a timeline? Will it be six months? Consultations can take 10 years, too.
Mr. Fourney: All I can tell you is I have taken part in a series of these discussions, and I think they are still ongoing.
Mr. Henschel: To some degree, some of these things you are asking about become policy issues in that there are privacy issues to be considered and those things. From the policing perspective, we have to be very careful in getting involved in those discussions. However, I think our colleagues from the Department of Justice and Public Safety might be able to provide more advice on those issues.
We can certainly comment on the mechanisms and where we are experiencing problems, particularly with getting samples and what you can put in the data bank and that sort of thing. That said, I think our colleagues are probably in a better position to answer your broader question.
Senator Lang: Chair, I do not know if I heard a clear answer. I am not quite sure who is responsible, but maybe we should hear from them to give us some idea as to what could be done. We can make the recommendations and maybe make the wheels of government move, however slowly. I think we are here to assist.
I would like to move on to another area. Senator Baker, who I hope to get to know quite well, raised the question of money and whether you were able to do the job that we have asked to you do. I was really quite interested in reading your opening comments here about the new technology:
This year the National DNA Data Bank will begin to validate and replace its aging DNA sequencers with state-of-the-art, high volume DNA analysis equipment . . .
Now you can process 960 samples over a 24-hour period without human assistance.
That must be a very significant improvement. Maybe you have too much money now. However, could you just elaborate where we are with that? Further, you talk about a mobile unit. Is the idea every jurisdiction will eventually have a mobile unit?
Mr. Fourney: I guess we can always look in our crystal ball and get a wish list. I have worked in DNA in the forensic field for over 22 years and quite a few years before that in cancer genetics and molecular evolution. Each year brings a new set of experiences and new technologies. It is kind of like your kids with their favourite Nintendo game; next year, they will want a different one.
The workhorse sequencers are what actually detect the DNA that allows us to process the samples for the National DNA Data Bank. The operating labs that process crime scene samples use the same technology. There is always a coordinated flow.
The new technology that I am looking at now is an upgrade from the instrumentation that we currently have. I want to tell senators and colleagues in this room that switching the technology does not imply the old technology did not work. What it implies is there are advantages to switching to the new technology.
We have learned a lot about robotics. Certainly, the sensitivity and the laser detection that excites the molecules is much better improved. I have to tell you folks, when I started off, it was done by hand. Now it is all done by machine. This new machine will provide faster throughput — I can do 48 samples in 22 minutes. It cleans itself. This automatic receptacle can process 10 trays of 96 samples at a time. It has enough materials and reagents and everything else.
I saw this in action just last June, and I was a reviewer of the program at the FBI labs at Quantico. They were facing a more significant problem, in terms of numbers of samples. They were gearing up from 30,000 to 1.3 million per year. They had to really look at a lot of sophisticated robotic technologies, and because we share our interest in these procedures and the technology, it was a good chance for us to see how this was working.
We have received this instrumentation now. It will be hooked up in the lab in April, I hope. It is just like any other new toy: Everyone is pretty excited about it. However, it will have to go through a tremendous number of checks and balances — quality assurance, validation, site preparation and training of our people. There is much work involved with changing technology like this before it becomes operational. I think that with good work and a highly trained team of professionals, it may be implemented as early as this fall.
We currently use about 13 different types of tests for comparing DNA profiles. We will switch to 16 tests, 15 plus gender discrimination so we can determine male and female. Those additional different tests will provide even higher amounts of discrimination. This piece of equipment is built specifically to enable us to detect through fluorescents the colour changes with these new tests.
Again, it is adding to a procedure we already use; it is not completely switching over. We are too cautious and risk-averse to switch completely, but you will see a nice piece of equipment validated. We have seen it at work in a couple of labs in Florida with the FBI. It will enable us to process much of this in an automated fashion and conserve the amount of material we start with.
The first step is the data bank where we have controlled DNA samples. They will be collected in a prescribed collection kit. Eventually, this will be brought into operational facilities where those types of samples are much more challenging. We are spoiled with the data bank. Samples are collected in a defined manner with a control kit by highly trained individuals. What comes into the operational lab is the twilight zone of crime scene samples. There is still more validation to do.
The other is the mobile processing unit. This has been something I have been hoping to see for 10 years. I have worked with groups dealing with bio-chips, micro-machines and things of this nature. You surely have heard of some of the nanotechnology employed for cancer diagnostics. Forensics is the orphan child of science in that most research effort goes into clinical diagnostic work, but eventually the fallout is that forensic facilities will start seeing some of these great new technologies employed for forensic applications. This will be one of the first.
There are competing companies and different groups that have been working on this for over a decade. We have looked at some in the past, but we have been involved with this company from the ground floor to talk about design efforts. By being on the ground floor, I think we will end up with a piece of equipment that will work for our purposes. I am keeping my fingers crossed that we might see the equipment this fall. They are on track thus far.
The unit could be used to process a single sample in a very short period of time. A result may be available within 15 minutes. It processes only one sample at a time; the cartridge is thrown away and you put in another sample. The obvious next step will be a multi-unit cartridge so you can do a number at one time, but that is down the road. This unit could be taken to a crime scene, for instance, if you choose to do so.
In large crime scenes, like our case in Vancouver, perhaps there is an advantage to that. It is more of an advantage in most cases to have that type of equipment in the laboratory simply because you are able to maintain a high level of quality assurance, safety, security, et cetera. The second you move something to a processing centre, you almost need to have a command centre and a separate lab. The U.K. has mobile labs and other groups are looking at this as well.
We are working in collaboration on this particular piece of equipment with colleagues in New South Wales, Australia. They are also quite excited. I visited them a couple of years ago to work with them in looking at transformation technologies. This is one of the two that we shared. Maybe the next time I return I will be able to show you this.
Senator Lang: With respect to this new technology, what is the turnaround time? Will the first piece of equipment narrow the turnaround time?
Mr. Fourney: We think so simply because we are able to process more samples in a shorter period of time. To see how it works on control samples from a collection kit for the National DNA Data Bank is one thing, but to explore its use in crime scene samples where you have exhibits that are more challenging is difficult to say. The fact that you can do many more samples in a shorter period of time should give us a significant advantage.
The Deputy Chair: Senator Lang, Ms. Bird reminded me that on March 26, 2009, we had witnesses from the Department of Justice, Mr. David Bird and Mr. Greg Yost. Many of the questions put to them, for which written responses were provided, touched upon the first issues that you raised. Unfortunately, this was not circulated to new members prior to this meeting. It will be circulated following the meeting. I think you will find that very helpful regarding those issues.
Senator Joyal: Mr. Fourney, I would like to return to the case of Gregory Turner. Senator Angus raised this issue. With all respect, I thought you pushed the issue quickly under the carpet.
I will quote from an article in The Globe and Mail:
Mr. Turner feared he was bound for life in prison after an RCMP lab reported odds of 163 trillion to 1 that a tiny amount of DNA on his gold ring could have come from anybody but a 56-year-old woman found murdered in rural Newfoundland.
The only real evidence in a first-degree murder charge against Mr. Turner, the golden sheen of DNA appeared certain to become a silver bullet in the hands of the Crown. . . .
. . . Mr. Kennedy — now Newfoundland's Minister of Health — saved Mr. Turner from a life behind bars. He sought the name and DNA profile of every technician who had worked at the RCMP lab. It turned out that the technician who had tested the ring had also been working on the victim's fingernails a few inches away, creating a strong possibility of contamination.
The technician conceded at Mr. Turner's 2001 trial that she had also contaminated evidence in two previous cases. In another disturbing twist, it emerged that she had mistakenly contaminated Mr. Turner's rings with her own DNA, causing police to waste a considerable time on a futile search for a presumed accomplice.
The article continues:
. . . lab botch-ups happen with distressing regularity. . . .
I am appalled. I have been aware of your service for the past 10 years. I was here in 1998 when we adopted the first DNA Act. When I look at you, I always think of you as my doctor and I trust you totally. However, the article illustrates other botch-ups and notes that the Innocence Project in the United States found three out of 156 cases of individuals exonerated in serious crimes had been wrongly convicted because of DNA errors. I feel that the results or conclusions of DNA analysis are not the tight proof one would like to believe to ensure that police investigations are made easier and that we can find the right person who is the author of a crime.
How can you convince me today that I should continue to trust that the issues of quality control raised in the 2007 Auditor General's report have been addressed. How can I be sure that those occurrences will disappear? You say that the new technology — the new toys on the shelf — will address what I call the "human factors" that apparently caused mistakes in those cases.
Mr. Fourney: I am sorry you feel that way. I apologize if you have the impression I misled the committee or the Senate.
I have a lot of confidence in this DNA technology. I have confidence in the science and, certainly, have confidence in the equipment. One thing we must always keep in mind is that it must be used properly and the procedures must be well validated and accepted. We have demonstrated the validity of our technology, but certainly, I can go through that, if you would like. I am not aware of the specifics of the operational casework for that particular case. Often I am brought into look at something because there was an issue or a concern and they were questioning whether the science or the procedure had to be reviewed. That is part of my research and development team.
I do not have the specifics of the case but I believe that it might have been a complex mixture composed of two different people. Obviously, there was a contamination, as you have pointed out, with one of the lab technicians. We have developed a lab technician or employee elimination database. Everyone working in the lab under our quality assurance process must have a sample on record. If we see anything beyond that is an unknown sample, it is checked against that elimination database.
For instance in this particular case, if we had had that elimination database operational in those years, they would have picked up the fact that the DNA was from that person. That is one of the changes that we have made. As I indicated, I cannot remember the date but I believe it was before the accreditation. Currently, our accreditation is under ISO ICE 17025 for testing and calibration laboratories. We meet the requirement of what we call CAN-P-1578, which is the Canadian Forensic Testing Laboratory Quality Accreditation. The accreditation is done by an independent, international accrediting body that involves outside experts coming in to review our process. We have just received our national accreditation for all the laboratories in the National DNA Data Bank in 2008. We have reached that corporate accreditation.
This is the same type of accreditation that is used by our colleagues in Ontario and Quebec, who are testifying before this committee tomorrow, I believe. Perhaps they can talk to you about the importance of accreditation and a quality standard.
Our exhibit examination procedures have changed. We have changed how we separate access to the samples of knowns and unknowns. Any non-conformance issues regarding something that does not seem right or does not make sense are reported. They are documented in a quality assurance registry that we have to review. We review all of that information. If necessary, the controls and samples are rerun. We would like to think that these steps are very important not only to increase the awareness of why we do what we do but also to ensure that everything we provide has a valid and reliable result.
We sure hope that we will not make a mistake or have a problem in the future, but people are fallible. Part of the job of quality assurance is to have the checks and balances in place to ensure that this does not happen. We have learned from this particular case. We have adopted a different accreditation program and we have checks and balances to ensure that it works. People had to be re-proficiency tested, et cetera. It is very important. I hope that you have confidence in the technologies that we use and the science that we employ. There are many labs.
I believe that you are referring to a weekend newspaper article that referred to American laboratories and other centres in Canada. The case in West Virginia is decades old. What happened was terrible but it was in the days before accreditation and increased quality in many forensic labs.
Senator Joyal: I trust the science but I trust less the people who use the science. That is the weak link in the system. We must be more aware that the results from the implementation of science are reliable. If I were a judge with DNA proof before me, I would be wary of the safety and validity of the test if the Crown raised reasonable doubt.
Mr. Henschel: If I may, I will add to Dr. Fourney's comments. The case that you referred to was in 1997, which was very early on.
Senator Joyal: No, the case was in 2001.
Mr. Henschel: It went to court in 2001 but the case occurred in 1997. Much has changed since then, as Dr. Fourney said. The other issue that does not necessarily get drawn out in the article is that there is a potential contamination issue at the crime scene when the evidence is collected and before it even comes into the lab. Certainly, forensic identification specialists in the field would have evolved on how they seize evidence today compared to 15 years ago when this was relatively new technology.
In the field of forensics, investigators have to remember that they do not rely solely on one piece of evidence and declare with surety that it stands on its own. We say the same thing in respect of DNA work. When you do an investigation, you look at all the different aspects around that case. You are always looking for corroborative evidence, not just forensics, such as witness statements et cetera. When the Crown goes to trial with it, they pull all of the various pieces of evidence together.
We have to be clear that forensics is one piece only of a case that goes to trial. Other investigative steps must be taken so that all the pieces come together. That provides a bit of a check and balance in the process.
Certainly, all of our lab work centres on the quality of the pieces. We do everything possible to eliminate those kinds of problems in the lab system. However, as in anything else, when humans are involved, the potential for human error exists. Our quality systems are set up to catch that so we do not have an error working its way through the system without detection.
Senator Joyal: That problem was identified by the Auditor General in her report. I will quote from page 27 of the summary of her report:
Furthermore, the national quality management system failed to identify problems with the new automated process for DNA analysis.
It is disturbing to read that in 2007, which is more recent than you indicated when you talked about 10 years ago when you did not know what you know today and the system was not as sophisticated as it is today. The science has an answer to everything.
The Auditor General said that the quality management system failed. She also said that the RCMP is not keeping its commitment to report to Parliament on performance. Who do we trust if we cannot trust our mother or God? Who else is there?
I know that you do your best, and I am not trying to impugn anything on the two of you. However, you must understand the public's perspective. Canadians expect the system to work perfectly because the freedom of an individual is at stake.
The man in Newfoundland spent 27 months in prison. I would not like to spend 27 months in prison because of a mistake. I think that someone bears a responsibility.
Mr. Henschel: We do not disagree at all. As I said, we are doing everything possible to make sure that those qualities systems are in place and that these kinds of errors do not happen. We will continue to do that. As technology changes, we will continue to focus on those issues. The premise of what we are doing and the process that we are using and how we are addressing things is that quality cannot be sacrificed.
Senator Joyal: Let me be candid. Is there a question of money? When I read your statement I thought it was candid. You said in part that you would like to add that the improvements you have made over the past year have been achieved during a period of fiscal restraint that reduced expenditures.
Fiscal restraint is supposed to come; it is not to have been last year. You continue by saying that much work remains to be done and many challenges are still before us.
Are you telling us that you would need a little more seed money to be able to improve the quality management system that you are implementing now?
Mr. Henschel: If you talk to any forensic lab or any person involved in the police work, he or she would always say that more money would be welcome. There are a couple of issues at play. First, there is a certain demand, whether for DNA analysis or for other forensic work. There is also a limited amount of capacity in any lab system. That was part of the issue around longer turnaround times et cetera.
Before I can say that I need more money for what we are doing, I need to make sure we are as effective as we can be with the funds that we have. That is exactly that process that we are in right now with this new forensic investigation process and streamlining things and ensuring that we are as effective as possible. That is where our focus is at this point. If we get to a point where we do not have the capacity to deal with the demand, then that becomes a policy decision as to whether we do not do certain things or we just do a certain amount of work, or we do not do certain work. In this whole process, the quality system will not be sacrificed.
Senator Joyal: In her report, the Auditor General mentioned that your performance report to Parliament lacked the essential information that we should have to be able to be satisfied that the quality management system works well. Unless this is not the right report, could you identify which aspects have been added to enable us to measure your performance?
Mr. Henschel: We report to Parliament through the departmental performance report. Last year, we also added in the appendix a complete breakdown of our performance within the lab. There are a variety of statistics there to indicate how well we did or did not do, for various offences and various disciplines. That is probably the first time that the full report was put on there as an appendix, but we follow what is available to us in the departmental performance reporting process to report on that.
Senator Joyal: Would you agree that after three years of the Auditor General's recommendation, it might be advisable or prudent to ask her to monitor the changes that you are committed to bring about?
Mr. Henschel: That is a timely question, because she is with us now as we speak. They have started a follow-up review and we had meetings in late December/early January. That process is ongoing for a report that I believe is intended to be tabled in early 2011.
I might add that we welcome that review, because it is timely for us. It is an additional external validation for us that we are heading in the right direction.
Senator Joyal: The other point that is disturbing for a layperson, as I am in this regard, is the article published in the Law Times that scientists have recently discovered that such evidence DNA evidence can easily be fabricated.
Can you answer that?
Mr. Henschel: I will let Dr. Fourney answer this question.
Mr. Fourney: I read the Law Times article, but I took the initiative to read the original article that it came from, too. It is quite a scholarly piece of work published in the Forensic Science International: Genetics. It is from a good group of scientists in Israel. Their claims are valid in the sense that you can fabricate, or make, DNA. If you look through this protocol, I wish I had a lab like theirs, because I do not think I could do it. I do not want to get into too much detail, but they have actually done it in three different ways. It involves a sophisticated series of technologies.
I have talked to you about the different markers, and so on. You have 23 different pieces of DNA in your chromosome. The variations in those pieces could provide a difference between people. If you do the calculations, there are all kinds of variables. At the very least, they have to be accountable for between 400 and 500 different variations, which means that they have to obtain your DNA; they would have to clone it, probably to sequence it; then they would have to cut out the fragments that are associated with that individual, amplify that up, and then put it back somewhere else.
The person involved with this process was invited to present his findings at a meeting in the U.S. Most investigators will tell you there are easier ways of planting evidence at a crime scene. You get someone else's blood or body tissue, or whatever, and you leave it there. The process that they have gone through is highly involved. It takes quite a bit of equipment, from my.
The other alternative is something called whole genome amplification. The short form is WGA. Frankly, I do not know of many labs that have been successful in doing that on a routine basis and effectively. I have colleagues who work in cancer genetics and other types of evolutionary studies. It can be done, but it is quite sophisticated.
Is it possible? With science, probably anything is possible. Will it be done by the average criminal or person with access to something? I do not think so. Finally, as Assistant Commissioner Henschel said, DNA is just part of the toolbox in an investigation; you would have to do follow-up. I know of cases in the States where they have tried to smuggle DNA out of prison surreptitiously, so it could be planted at another crime scene to indicate that someone else out there has the same DNA profile. They have been caught. That is probably — and, I do not want to be easier — a more reasonable approach than going through a time-consuming process. I take my hat off to this group, because obviously they have this equipment and they have a lot of technology at their disposal.
If I were a graduate student once again, I would like to give it a shot, but I do not have that much time and I do not have that much money.
The Deputy Chair: I will remind everyone that, because Senate chamber was a bit late in concluding, we started 20 minutes late. Normally we would conclude by 6:15 p.m. If everyone is in agreement, we will extend that time. We have three additional senators to speak. Are we in agreement to extend our time?
Hon. Senators: Agreed.
Senator Runciman: You talked about quality control. You mentioned certification earlier. Is certification an annual process?
Mr. Fourney: It is actually accreditation. Accreditation is for the entire system; it is a quality check of all the components. Certification would be for an individual, for instance.
For the accreditation, we have a number of audits that take place each year internally, called technical audits and reviews, which are part of the entire accreditation process. We have to perform and present those, I believe at the end of two years.
Senator Runciman: No one actually comes in and visits your laboratories as part of this accreditation?
Mr. Fourney: Yes, they do.
Senator Runciman: Is that every two years?
Mr. Fourney: Often we bring in individuals for special purposes, for instance, a new technology.
Senator Runciman: When did you first receive accreditation?
Mr. Fourney: I think it was in 2000.
Senator Runciman: Was it after the incidents that were referred to today?
Mr. Fourney: Yes.
Senator Runciman: I am curious about some of the other matters relating to the cost. I know Senator Baker and others mentioned funding.
I am trying to understand your responsibilities because of the two provincial laboratories, one in Quebec and one in Ontario. For the provinces for which you are responsible, is there a cost recovery mechanism in place? What happens? Is this part of a policing contract with the various provinces or other jurisdictions or is this all absorbed by the federal taxpayer?
Mr. Henschel: For the DNA, there are biology casework agreements in place. The provinces pay a certain amount into the Consolidated Revenue Fund. I believe that $3.9 million comes from the contract provinces, not Ontario and Quebec but the other provinces.
Senator Runciman: For example, each province and the Atlantic provinces would be required to pay $3.9 million.
Mr. Henschel: No. That is the total of what all the provinces pay.
Senator Runciman: All the provinces are paying a total of $3.9 million?
Mr. Henschel: Yes.
Senator Runciman: What are your costs to provide that service?
Mr. Henschel: You mean for the DNA side?
Senator Runciman: That is what you are talking about with the $3.9 million, is it not? Is there a distinction?
Mr. Henschel: The $3.9 million is specifically for the Biology Casework Analysis Agreements. Our costs are in the range of $15 million. I am not sure if it was quite that much this year.
Mr. Fourney: I believe it is $15 million. That does not include the National DNA Data Bank. For instance, my annual report shows $3.6 million.
Senator Runciman: It is about $20 million, of which you recover about $3.9 million across the country. Is that what you are saying?
Mr. Henschel: Yes, the federal government recovers $3.9 million.
Senator Runciman: How do your costs compare with the other two jurisdictions that operate their own systems?
Mr. Fourney: I would say we have more personnel, for instance, so it is a bit higher. In reality, in terms of the actual biology casework itself, they use exactly the same equipment, reagents and materials. They may have a newer robot here and we might have an older one there. I think they are comparable in terms of per service request. Where the difference comes probably is in the sheer numbers of cases, or the personnel involved.
Senator Runciman: Have either of the two other provinces, Ontario and Quebec, ever expressed concern about the fact that they are absorbing all those costs? Has there ever been any conversation related to that?
Mr. Henschel: Under the Biology Casework Analysis Agreements, they receive money from the federal government every year as well. The other provinces pay in. Ontario and Quebec get money from the federal government. I am aware of this information, but it is also a question that is better posed to our colleagues from Public Safety, because they are the ones who, on behalf of the minister, negotiate those agreements.
Senator Runciman: When was the last agreement negotiated?
Mr. Henschel: The current agreement expires this year, I believe.
Senator Runciman: There is perhaps a conversation under way?
Mr. Henschel: Yes. Again, our colleagues at Public Safety would be the ones to ask.
Senator Runciman: When you talk about the funding challenges that Senator Joyal and others mentioned, looking at full cost recovery is something that perhaps should be considered by the government. I am not expecting a response with respect to that.
What is the relationship between your people and the two provincial systems? Do you occasionally assist each other? How does that work?
Mr. Henschel: We have a good working relationship. At the current time we are discussing with the Ontario group if there are areas where we can benefit from working together more, because in some of the other forensic sciences there is a lot less demand or casework. It is not the same as in DNA. To maintain the critical mass to keep a certain discipline going, sometimes it might not be enough. We are looking at those kinds of opportunities.
In addition, on the DNA side, we have a scientific working group on DNA that we work with the labs in Ontario and Quebec to ensure there are common standards in Canada and that there is agreement on how work is done. Dr. Fourney is involved in that.
Mr. Fourney: I just want to point out, we are fortunate in Canada because we do have such good partners in Ontario and Quebec, excellent scientists and great facilities in terms of the DNA work that I am familiar with. Balance that with roughly 250 laboratories in the U.S. with all different levels of municipality, county, et cetera. We are truly fortunate. Remember, the National DNA Data Bank has a standard with regard to the type of DNA result that can go in for quality, as well as the type of technology that is used. The access to this data bank to check your crime scenes, for instance, would be fairly useless if they did not have similar protocols and the exact same technology, DNA. I would say it is working out very well.
Senator Runciman: You mentioned earlier the turnaround time in the two pilot areas. You mentioned 15 for priorities and 30 as the two statistics. How does that compare with the other regions?
Mr. Henschel: The system is quite a bit different where we have an urgent category, which is 15 days and less, but that is a small amount that gets done. We have a priority category for different offences. For homicides and sexual assaults, it is 25 days. That is the turnaround to targets, and we are meeting those.
Senator Runciman: I am looking for apples and apples.
Mr. Henschel: It is hard to compare. Then for the other 80 per cent to 90 per cent of homicides or sexual assaults, if we are talking about the major crimes that are not routine or categorized as priorities, it is really a capacity issue. The target turnaround time for those are 75 days for homicides and 90 days for sexual assaults. We were not meeting those a while ago, but over the process of improvements we have made just on that old system over the last year, we are in that range now where we are meeting those.
Senator Runciman: Did you say 75 days for sexual assault and 90 for homicides, or did I get those reversed?
Mr. Henschel: It is 75 days for homicide and 90 days for assault.
We are generally in that ballpark. If you look at everything we do in homicides, I made a note earlier today; we ran it for the last three months. I think we are down to 60 days for anything to do with homicides and 62 for anything to do with sexual assaults.
Senator Runciman: I will let others have the floor.
Mr. Chair, I spoke to a couple of front-line police officers on the weekend and they said the same thing. They would like to see the samples taken immediately upon conviction. They also mentioned that they would like to see a simple change that would eliminate the hassles involved in going to the county lock-up if someone is released and having to going for another court. They said that simple change would make life a lot easier.
The Deputy Chair: We will make note of that.
[Translation]
Senator Carignan: You mentioned technological improvements, with the purchasing of a new sequencer. You also referred to new internal procedures aimed at increasing efficiency.
Productivity improvement has been referred to in your discussion with Senators Lang and Runciman. Have you tried to estimate, as a percentage, the real increase of the output capacity of the laboratory? Are you going to double or even quadruple that output?
In some private DNA laboratories, I have seen sequencers powerful enough to increase significantly the number of samples being analyzed. What is the estimated percentage of your output increase?
[English]
Mr. Henschel: I will respond in English.
I think, in general, when we talk about increases in productivity, obviously with the new process we are using we have gained a lot of efficiencies without even going to technological process improvements, which is coming in phase two of that new process.
I do not think we are in a position to predict on the forensic laboratory side or on the operation side. I am not sure we are able to predict what kind of percentage that will be because many other factors come into it. It is not just the analytical part with sequencers that takes the time. It is actually at the front end, searching and finding the DNA from the exhibit and trying to locate it. That takes a lot of time. Then the back end, for the report to be written for the interpretation of what profiles are found through the analytical component, and interpreting that and writing those reports. That is probably where most of the effort goes.
On the forensic lab side, on that component, there is a certain improvement by having automation on the analytical component but there are still these other components that factor into it. As Dr. Fourney indicated, it is quite a bit different for the National DNA Data Bank because you are getting pristine samples.
It would be very difficult for us to predict what that improvement would be. We are finding that out by going through the process we are going through now and we are seeing those improvements, but there are many factors involved. For us it is difficult to predict.
I think we can maybe have a better sense on the National DNA Data Bank side.
Mr. Fourney: From the National DNA Data Bank side, for instance, the units we currently use can process 16 samples in 20 minutes. With the other units it is actually about 40 minutes. The new units would be 48 samples in roughly 21 minutes. At each cycle we have to reload, which takes more time and effort. Think of putting a tray of 96 samples at a time, 10 of those run all the time. You can see the throughput. However, as my colleague has said, there are also checks and balances in terms of interpretation and there will be other rate limiting steps. The very fact that we have a faster turnaround for getting more sensitive results is a good first step.
We are considering other technologies. Whenever I say artificial intelligence people look at me strangely. There are certain types of software that allow you to go through a process for interpretation in a much faster and quicker prescribed protocol. It is just like you would do by hand and by eye, but the fact that you are being guided through it by an automated piece of equipment is an enhancement. Also, it should enable us to determine complex mixtures. As a result, I would see some of our interpretation would increase. Some of the other new technologies that we are looking for at the operational side, and not necessarily for enhanced speed, could be in the sense that it would help us orchestrate the case better in terms of the selection of samples that we take. We are spending quite a bit of time, for instance, figuring out how to process our sexual assault samples much faster in the sense of earlier detection or more sensitive equipment.
We are looking at some new ways of detecting spermatozoa, for instance, including fluorescent enhancement. We are also looking at ways of quantitating the amount of DNA that we recover from an exhibit. Now at one time we just quantitated total human DNA. With this new technology, we are going to quantitate male DNA and human DNA. The reason is we can often look at the ratio between the amount of human DNA and how much male DNA is there. That becomes important when we are processing a sexual assault case where there is potentially contamination from the victim's sample. That will save time and it is also more sensitive. Then, in the longer run, we will have the quicker turnaround.
I have been to those labs that you are talking about, and they use a brand new technology called SNP, or single nucleotide polymorphisms. We are not there yet but it is around the corner. Essentially, if you look at tray of 96 samples, every sample has a particular point of difference and it is like a yes and no answer, and you can do them simultaneously. That will come, but we are not there yet.
[Translation]
Senator Carignan: When I referred to a productivity increase, I was thinking of the speed with which samples are being analyzed to get matches. With the same budget, what would contribute more to increasing the number of samples being analyzed? Would it be criminals being automatically found guilty when they are indicted or would it be being able to improve the analysis of samples on crime scenes? In other words, when one talks of increasing the laboratory capacity, one means increasing the number of sources. Therefore, what would be the most efficient source for laboratories and investigations? Would it be increasing the number of new samples from victims and criminals or ensuring a more in-depth analysis of available samples from crime scenes? I am not sure if I make myself clear.
[English]
Mr. Fourney: It is a very good question and you will be surprised at my answer, because I am sure after being here a number of times you think I am the person that always likes new equipment and technology. Yes, that is true to a certain extent, but you have to use it properly and you have to address the correct question and provide that answer.
One of the things that Mr. Henschel has mentioned is that we are very much interactive with the investigators at the front end in this forensic investigation process, what we call FIP. It is rolling out in the Maritimes and now into Manitoba. One of the things we found is by working closely with the investigators at the front end, during the course of the investigation, they actually phone in and talk to us and we go through the types of analyses. They are able to select the most probative piece of evidence that they require for a particular case at a particular time. One of the things we are doing, which may sound like common sense but it is fairly revolutionary to some forensic laboratories, is providing those key answers at an earlier stage than when the entire case is not processed. In fact, it could be a turn of events during the course of an investigation. For instance, if they find blood at the scene of the crime, and if they determine that it contains male DNA, they might not have to know the identity of the donor. They might obtain that information later from more sophisticated technology in DNA analysis. Just the fact that there is male DNA found in a sexual assault kit taken in a hospital under defined conditions is highly important to that investigation. Those types of discussions often take place.
My colleagues in the Georgia Bureau of Investigation, who launched a similar type of technology investment where they are providing just a simple "is it male DNA found" in sexual assault kits, that went to an investigator and the prosecutor at an early stage and it has cleared up their backlog significantly. It also changes the course of the investigation with regard to an unknown perpetrator; the consent issue and all those other things come into play.
Part of the role we are playing now is providing, in the timeliest fashion, the best information we can to answer that question in a manner that helps that investigation. In the past, we were always following up after the fact. We are actually trying to be in the front end now, working with them in the course of the investigation.
I think personally — do not shoot me for this, not that I do not want new sequencers — if we can change the process on the front end to do this with the investigator, the impact on the investigation and the significance for forensic science will reap immeasurable gains without any new technology. That is what we mean by changing the process as well as advancing the technology.
[Translation]
Senator Carignan: What is it your relationship with Quebec and how does the Quebec laboratory operate? Are DNA analyses carried out by the Quebec laboratory transferred to the data bank? Are you involved in their DNA analyses?
[English]
Mr. Fourney: In this particular case, they may have a crime scene in Montreal, and our colleagues in the biology group in Quebec work all weekend because it is a very important case. They will have a DNA sample uploaded into CODIS, into the Crime Scene Index. CODIS is the software we use to connect our laboratories and the National DNA Data Bank.
When that crime scene sample, which is done in the same manner that our crime scenes are done, is uploaded into CODIS, it comes right into Ottawa — into the National DNA Data Bank — and it is checked against all the Crime Scene Index samples across Canada, as well as in Montreal, and also convicted offenders. If we get a crime scene hit — that is, linking to another sample say in Halifax or one in Toronto or another one in Montreal — it immediately goes out.
It is an electronic connection that goes right back. It is a secure network, so they will have an answer right away, often within 20 minutes, that they have connected their crime scenes. They may be on the phone talking to Toronto and saying you have a file case such and such, because the National DNA Data Bank does not have any background information in terms of the nature of the case, the exhibits or what have you; it just has some DNA information for linkage.
If it is a convicted offender sample, other things happen. We are the only ones that have the convicted offender sample information. What happens is the DNA in the National DNA Data Bank is controlled for privacy and security. We do not know the nature of the individual in the data bank with those convicted offender samples. The identity is controlled in our Canadian Criminal Real Time Identification Services, CCRTIS. They have all that information but they do not have the genetic information.
When we make a hit to a convicted offender, it is to a code number. We provide that code number to our colleagues in the criminal records group, and they review that information. If they come up with a name, because of other police information, that information of the name is released back to the laboratory. The laboratory in Montreal, for instance, would phone up the investigator and they would start to talk. That is how our hits are made within the National DNA Data Bank and the crime scene.
I can give you an example of how things work. I think the Montreal lab has the highest number of hits per sample. We had a situation where there was a number of large-scale break and enters. An individual was the person that was keeping watch outside and he smoked a cigarette. A very astute investigator realized these cigarettes were being pulled at different crime scenes. He sent them all in to the lab. They processed them, it came into our lab and one day we made 47 hits for one person, solved 47 crimes.
Senator Angus: When you talk about the link with Montreal and Ottawa, are you talking the GRC in both cases, the RCMP, or is it the RCMP, Ottawa and the Sûreté du Québec?
Mr. Fourney: The lab is seamless. Essentially, as scientists, we talk and work together. The provincial labs in Ontario and Quebec and all the forensic labs in the RCMP have equal opportunity to search the National DNA Data Bank.
[Translation]
Senator Carignan: DNA information is of capital importance. I am always troubled by the fact that samples can be destroyed even though we have a vast data bank. If only for medical research purposes, would it not be advantageous to keep the DNA samples while of course protecting individual privacy? This is an invaluable resource for researchers and, in that sense, I find this scandalous.
[English]
Mr. Fourney: They do not destroy but retain the samples collected for the Convicted Offender Index. Once the DNA profile is processed, that goes on to the National DNA Data Bank but we keep the original collection card.
The reason we do that is if the technology changes in the future and we get permission to go back and look at a different set of markers we can; but more importantly, it is a quality assurance measure. If in the future something does not add up with the wrong sample matching up, we can go back to the original sample. That is a quality assurance measure, based on our accreditation.
In terms of its use, it is highly prescribed within the DNA Identification Act that it is for law enforcement purposes. The individuals who work in the National DNA Data Bank are not allowed to release any of the DNA information for any other purpose, so it is highly prescribed.
Part of that is the privacy and security that is entrusted in us. I would think it is a reasonable balance for us to respect that privacy and security for the fact that we are providing this important information to the investigator.
Yes, there are other countries in the world, certainly in the U.S., where their legislation has allowed them to use the convicted offender type samples for other purposes, usually for statistical evaluation for new forensic markers or things like that, but that is forbidden in Canada.
[Translation]
Senator Carignan: It is forbidden by the legislation but we are here to try and improve the act. When someone is appointed or released, the samples have to be destroyed after a certain time. However, would it not be to our benefit to keep the data in an anonymous data bank, with a wealth of other information, for medical or scientific research purposes?
[English]
Mr. Fourney: I have to answer that from a policy perspective. From a scientific point of view, it is to your advantage if you can learn more from something. Our Privacy Commissioner's Office would be very interested in that question.
Keep in mind we have a representative on the National DNA Data Bank Advisory Committee who is a member from the Privacy Commissioner's Office. We always double-check our operations concerning security and privacy.
[Translation]
Senator Boisvenu: One issue is of particular interest to me, that of victims of crimes and, especially, missing persons.
Over the past 15 years, in Québec, there have been 15 per cent fewer murders but 40 per cent more cases of missing persons. This is all the more worrying when one realizes that in Quebec only one out of seven cases of missing persons is ever resolved. I wonder if this means that criminals are becoming more and more devious. In any case, the legal process is such that it is very difficult to take any legal action in the absence of guilt beyond all reasonable doubt, which generally means discovering a body, unless information has been provided by someone.
In Alberta, a woman has been trying for 15 years to get the taste of her kidnapped daughter resolved even though the body has never been found. You are probably aware of the famous "Lindsay Law."
You said earlier that the DNA of a serial rapist had been found on his third or fourth victim. When I was a member of the Association des familles de personnes assassinées, we lobbied for several years for the creation of a databank of missing persons so that, if a person were to be missing, police would collect from the parents a DNA sample that would be kept in the data bank.
About one hundred bodies are found in Canada whose identification is impossible because there is no DNA. Some of those bodies are of homeless persons but some might be of persons who were kidnapped and murdered. Unfortunately, we have no way to identify them.
Do you not think it would be useful to set up such a data bank in Canada? It seems that several American states will have such databanks in the future. In some cases, they were able to correlate the DNA of victims and criminals. In Detroit, they found a criminal who had murdered eight women over the past 15 years and it is thanks to that DNA data bank of victims and criminals that they were able to find them.
As a professional and a scientist, do you not think that this type of data bank would help the police in their investigations? I am very concerned because the statistics seem to indicate that the number of missing persons is increasing. One only has to think of the tens of Aboriginal women who disappear in Western Canada and whose bodies are never found.
[English]
Mr. Fourney: This is a very important question because it has been an ongoing discussion for more than a decade. Since I have been involved with DNA, there has always been that potential ability to set up what we would call a missing persons index. In some ways, we have used or employed such an index. For instance, we did so for Swissair 111, which I was involved with from a DNA point of view. We helped identify all those victims who tragically disappeared off the coast of Nova Scotia.
The only difference between a disaster of that nature and a missing person's index is a time factor. A disaster like an aircraft crash is a period of time, whereas a missing person's index would involve a longer period of time. I can tell you there have been several bills before Parliament to develop a missing person's index. In 2005, a federal consultation was put forward, hosted through our colleagues at Public Safety, and the results indicated that we should be looking forward towards working with federal-provincial-territorial agreements for the potential of a missing persons index.
There have been many discussions over the last few years on that subject, and my understanding is that it is still before the various working groups to figure out the best appropriate approach. There are some issues that have been discussed, such as what constitutes a missing person, for instance. If a young child is missing, an amber alert goes out within a very short period of time and many things happen.
There are many circumstances where some countries have employed the rule of so many months or over a year, for instance. There is difficulty assigning the nature of the missing person concerning what steps you take.
There are issues. If you develop such an index, what are the safeguards with regard to comparison? Would you compare it against found, unidentified human remains, for instance, or would you potentially compare it against crime scene index samples in the National DNA Data Bank? You would hope the missing person does not show up in the National DNA Data Bank but there could be circumstances of an unknown nature where the crime scene, unbeknownst to us, involves a victim and the victim is a missing person. There is that aspect, as well.
Finally, there is the consideration of how we would work with the provinces and the federal government in sharing information, funding the various repositories, and how we would go forward on that.
This is very much an ongoing discussion. As I said before, it is within the Public Safety working group, and I am hopeful we will see something come out of this.
[Translation]
Senator Carignan: Take the case of the feet that were found on Vancouver Island. We never collected any DNA samples from those feet even though such samples could have been collected and stored in the National DNA Data Bank in order to try and find whom they belonged to.
[English]
Mr. Fourney: That is correct. From the National DNA Data Bank point of view, that would not happen. In terms of a local level of an ongoing investigation, perhaps they opened up an investigation right there in the Vancouver area, not unlike our Pickton case, for instance, where we had a number of missing individuals. In that sad situation, they established a fairly large bank of individuals to compare samples to.
However, that is done for a prescribed purpose for a particular investigation. Any volunteered samples or anything of that nature are destroyed after the case is closed.
You are right: From a data bank point of view, something like that could never be held at a national perspective in a single unit or a consolidated data bank until legislation changes.
The Deputy Chair: I have one question and one request. I think the question will require a short answer. I was looking at the National DNA Data Bank Advisory Committee Annual Report 2008-09. On page 7 is a reference to that fact that the data bank would be able to process from 50,000 to 60,000 Convicted Offender Index samples with a moderate increase in cost.
The House of Commons standing committee made certain recommendations that it would expand the number of samples that could be taken. I will not get into the circumstances. However, the report says the number of samples could increase to 113,000, but would require a significant resource increase.
What does that mean? In terms of a ballpark percentage or the annual budget, what would that entail?
Mr. Fourney: I think the first thing that would happen is I would go into a panic situation.
In reality, I claim from the original onset of the National DNA Data Bank that its structure is very sound and we based the fact that we can process between 30,000 and 60,000 with a full staff complement. We have never achieved a full staff complement. I think we have 24 people and it originally calls for 31 or 33 people.
If we assume that we have full staff complement and the equipment that we currently have is working to its optimal, we could probably hit 60,000 samples, with the understanding that the budget for reagents and materials we normally would expect would be processing around 30,000 to 34,000 samples. We would need some increment to offset between 30,000 and 60,000 samples. It is like you are driving farther and you have to put more gas in the car, but you do not have to buy a new car.
Once we go past 60,000 samples the sheer number of samples, processing, and logistics of the operation have to change. Even the space allocation of your equipment must change. More important, we want to maintain the same high level of standard. I wish to draw to senators' attention that we do not have any waiting for samples to be processed in the Convicted Offender Index. It is routinely processed within the five-day turnaround. We have been able to manage that by holding on. With the change in legislation, we went from 18,000 samples about a year ago to 34,000 samples today. That is a big change to accommodate without changing staff or equipment.
Beyond 60,000 samples, we have to start looking at new types of equipment and, potentially, adding a few more staff. With automation and a more robotic way of loading equipment, I hope to offset the labour needs to reduce the cost somewhat. We are currently in consultation with colleagues at the Department of Justice Canada with the understanding that if things change, we will have to predict the cost. We are working on that as we speak.
The Deputy Chair: There seems to be interest among some to expand the use and availability of the data bank information as Senator Boisvenu has suggested. Is there any sense you can provide as to what the increase would be if the recommendation of the House standing committee was followed? What is the order of magnitude in your annual budget?
Mr. Fourney: It is not so much about the annual budget. The sample prediction would probably hit 100,000 samples. We processed 34,000 last year. The cost of a sample was listed in our annual report at $107 per sample.
The Deputy Chair: In the National DNA Data Bank Advisory Committee Annual Report 2008-09, on page 9, reference is made to an effectiveness study of the data bank undertaken in 2006. A report was prepared by the Department of Justice entitled DNA Orders Issued in Adult Criminal Court: A National DNA Utilization Study. We have been unable to find a copy of that report. Could you please provide a copy? We would appreciate it.
Thank you very much for your information. For the new members of the committee, it is enlightening. For many of us who heard it last year, it is a great reminder.
I remind committee members that we have witnesses from the labs in Quebec and Ontario tomorrow at 9:30 a.m. We look forward to hearing from them. May I have a motion for adjournment of the meeting?
Senator Joyal: I move the adjournment.
The Deputy Chair: Thank you.
(The committee adjourned.)