Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for March 24, 2010
OTTAWA, Wednesday, March 24, 2010
The Štanding Senate Committee on Legal and Constitutional Affairs met this day at 4:18 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: Welcome to this session of the Senate Standing Committee on Legal and Constitutional Affairs. We are continuing our study on the provisions and operation of the DNA Identification Act, which was passed in 1998. This is a statutory review.
We have the great pleasure of having with us today representatives of private forensic labs. From Warnex PRO-DNA Services Inc., we have Dr. Amarjit Chahal, Senior Director and Technical Leader. From Maxxam Analytics International Corporation, we have Dr. Wayne Murray, Director, Forensic and DNA Services; and Martin Westecott, Supervisor/ Forensic Biologist. Welcome to the committee. Welcome to the Senate. Thank you all for appearing.
You may understand the way we normally go about these things. We ask you to make opening statements, and then we will ask you questions. We will begin with Dr. Murray.
Wayne Murray, Director, Forensic and DNA Services, Maxxam Analytics: Thank you. Honourable senators, I would like to start by thanking you for the opportunity to be here. It is our pleasure.
I want to take my time to introduce Maxxam Analytics International Corporation in a way that we can potentially start a discussion here about the issues before us. Maxxam Analytics would be considered one of Canada's premier laboratories for scientific services. We are a science company. We are national in our scope within Canada. We operate 32 distinct laboratories across the country from coast to coast. We are a large employer of the Canadian public with 1,800 employees, most of whom have a strong scientific background.
We provide testing for varied clientele, with the company being divided into our core business lines or units. We do environmental testing; we do petroleum services testing; we do food, science and safety testing; and we do forensic and DNA services testing. We hold the number one market position in each of those avenues of work, and I think it is fair to say we would be recognized on five different fronts: expertise, quality assurance procedures and policies, turnaround time, pricing and Canadian-owned and operated. We are owned by the Ontario Municipal Employees Retirement System, OMERS, which is a large recognized pension fund within Canada.
Of the annual revenue that Maxxam Analytics generates, $47 million of that comes straight from public-sector- private-sector partnerships and government contracts that exist with the Ministry of the Environment, with the Canadian Food Inspection Agency, with Correctional Service of Canada, with National Defence and with the Royal Canadian Mounted Police, to mention a few.
Specific to the Forensic and DNA Services Division of Maxxam, for which I am the director, we have four distinct departments, only one of which I elaborate on. We run the forensic biology and DNA division of that, which I will talk about in a moment. We have a paternity testing laboratory, an animal DNA diagnostic service and drugs of abuse service. From those avenues of business, we interact with government agencies and clients, law enforcement agencies, livestock producers and registries across the country, and employers in high-risk and safety-sensitive environments.
Specific to the issue at hand and the work that we do related to forensic and DNA services, the highlights of what we have done over the 10 years of our existence are as follows.
We were founded in 1998, and it was certainly, at the time, a unique endeavour in which we brought together people with public sector experience, such as myself and my colleague, Mr. Westecott, and private sector experience that exists at Maxxam Analytics to create a laboratory environment that was unique and with capability in forensic biology.
Similar to the RCMP, we are accredited by the Standards Council of Canada, SCC, which was established in 2000, and since then, we have been re-accredited approximately five times and maintain that accreditation. In an effort to be restricted to not only a Canadian market but to potentially open up a U.S. market, we were also accredited and have maintained accreditation with Forensic Quality Services, which is a U.S.-based accrediting agency that accredits to quality assurance standards issued by the director of the Federal Bureau of Investigation, FBI.
We have a current, ongoing, nine-year standing offer relationship with the RCMP for which we provide full service forensic biology case work. Within this, we have been audited annually by the RCMP to ensure that we meet their needs and their quality standards.
We are currently the only private laboratory in Canada approved by the RCMP for the submission of designated DNA profiles into the National DNA Data Bank. To date, courtesy of both our work with the RCMP and directly with police agencies across Canada, we have reported greater than 2,000 forensic cases. From that clientele, we have established the RCMP, Canadian police agencies, legal and medical practitioners and, in fact, even private citizens as our client base.
Very specific to the U.S. Combined DNA Index System, or CODIS, and the National DNA Data Bank, we have submitted 1,035 DNA profiles for entry. From this, we have generated 420 hits to either the Convicted Offender Index or the Crime Scene Index, representing a 41 per cent hit rate.
I think our business has a place as a complementary service to that which exists within the RCMP, the Centre of Forensic Sciences and the Quebec forensic laboratories in Canada, as it speaks to issues of turnaround time, or rapid turnaround time, and expanded scopes of service.
That summarizes who we are as a company, what we do and how we go about doing it. I look forward to your questions and the discussion that comes from them.
Amarjit Chahal, Senior Director and Technical Leader, Warnex PRO-DNA Services Inc.: Good evening, honourable senators. My statement is in front of you in case you cannot keep up with me.
Thank you for the opportunity today to speak to the Standing Senate Committee on Legal and Constitutional Affairs on the provisions and operation of the DNA Identification Act. I am the Senior Director and Technical Leader of Warnex PRO-DNA Services Inc. in Thunder Bay, Ontario. Warnex PRO-DNA Services Inc. is a subsidiary of a public company called Warnex Inc. Warnex Inc. is a life sciences company devoted to protecting public health by providing lab services to the pharmaceutical and health care sectors, and it employs approximately 200 persons.
With respect to Warnex PRO-DNA Services Inc., I will refer to this subsidiary as Warnex. It is the one directly related to forensic DNA. It was called Molecular World Inc. before June 2009. It is located in Thunder Bay, Ontario. It has been providing specialized forensic DNA testing services to defence counsel and law enforcement agencies, which include the RCMP, Ontario Provincial Police, or OPP, and municipal police services across Canada, for the past six years.
Warnex is the only private accredited DNA analytical facility in Canada to carry out forensic tests using all four DNA technologies. There are three nuclear DNA technologies, including the one dealing with the National DNA Data Bank and one technology called mitochondrial DNA. We use these technologies on both modern and ancient samples.
We are accredited by the Standards Council of Canada to ISO 17025 standards for providing forensic DNA testing services. This accreditation is identical to that held by the RCMP forensic labs. Staff has provided expert witness testimony in court for mitochondrial and nuclear DNA evidence.
Warnex provides fast turnaround times to assist in speeding up surveillance and investigation. Warnex can provide investigators with DNA conclusions within 10 to 30 days. This represents tangible savings of time and cost, and many suspects can quickly be identified or excluded. There are other reasons, such as the humanitarian and compassionate values, of solving cases quickly by delivering timely DNA analysis services.
Currently, only nuclear DNA technology is used by the government labs for forensic casework, as well as for the National DNA Data Bank in question today. Around the world, mitochondrial DNA analysis has proven its forensic and probative value to law enforcement. The FBI started using mitochondrial DNA technology in 1996, and we started our lab for offering this technology in 2003, in Thunder Bay. Many mitochondrial DNA cases have been successfully tried in the U.S. courts, whereas, on this side of the border Warnex presented mitochondrial DNA evidence in a Canadian court case in 2006 that assisted with the conviction of Ronald Woodcock, in R. v. Woodcock. This is the first reported case in the Canadian courts that used mitochondrial DNA as evidence in a criminal case.
Senator Baker: Is R. v. Woodcock the name of the case?
Mr. Chahal: Yes.
Senator Baker: Thank you.
Mr. Chahal: Warnex had used this second technology in many cases. Example cases are listed in the handouts. I will go by the year. This technology is more important because it can help solve cold cases.
The first example is R. v. Woodcock. That was the 1994 case. The second is the identification of a missing person, namely, Lambert Daniels, who was missing since 1991. The third case is the identification of a suspect in the Candace Derksen case in Winnipeg. That is a 1984 case. The girl disappeared in 1984, and we helped identify the suspect a couple of years ago. This technology can also be used to identify old remains, such as World War II soldiers. We have assisted with the identification of World War II soldiers.
Although I am here today to answer questions about the RCMP's National DNA Data Bank from the perspective of a private DNA testing company, I am also requesting an opportunity for my suggestions about the expansion of present RCMP DNA data bank to include a missing persons index and mitochondrial DNA testing technology, the second technology I was just talking about.
Dr. Ron Fourney, who is in the audience, has worked on this proposal for many years and has presented the importance of such a database before the Parliament in the past.
To give you an example, in 2000, the FBI lab began developing the National Missing Person DNA Database program for the identification of missing and unidentified persons. Both mitochondrial and nuclear DNA profiles can be entered into their missing persons index, which is part of their national data bank.
It is important to note that there is no such database in Canada, whereas there are hundreds of missing persons and unidentified human remains in Canada that can be identified if such a database is available or if the present database is expanded to include missing persons and the second technology.
The benefits of allowing both DNA technologies in the DNA database of missing persons in Canada include the following: First, it will bring certainty and relief to families of missing persons; second, it will provide comfort to families of missing persons to know that their mitochondrial and nuclear DNA have been stored in the missing persons database and the law enforcement is working toward identifying their missing relatives; third, it will bring certainty in that mitochondrial and nuclear DNA profiles from the personal effects and the relatives of missing persons are stored before the relatives are deceased — if the only available relative of the missing person is deceased at the time the remains are found, then the missing person will never be identified; fourth, partial remains can be returned to the families upon identification. Once we have DNA-typed the partial remains, then, if more remains from the same person are found at a later date, there will be no confusion. If the partial remains have already been returned to the family without the DNA profiles, then the remaining partial remains will never be identified again. This speaks to the importance of adding a missing persons index to the current database in question.
Since our lab is not directly supplying DNA profiles to the database at present, I thought my suggestion will be more about how you can expand the database.
In 2005, a published consultation paper examined the issues that would be involved in establishing an approach to creating a national DNA database to make links between persons who have been reported missing and unidentified human remains. This paper was prepared from the work undertaken by a federal-provincial-territorial working group. The creation of a DNA missing persons index would allow the use of existing technology to confirm whether or not unidentified human remains are those of a missing person, and thereby provide relief for the families of missing persons.
The Chair: Thank you both very much. We will now go to questions.
Senator Wallace: Thank you for the presentations. They were very interesting. As you may realize, we have heard a great deal about the government forensic lab facilities. It is interesting to see what the private sector adds to all of this.
For the sake of my own education, I obviously want to have a full appreciation of what the private sector forensic labs are capable of and how it compares to the needs provided by the government facilities. I took from what you said that you have the same formal accreditation as would exist with the RCMP labs and the provincial labs in Ontario and Quebec.
Could you again confirm if, in fact, that is true and if your technologies or practices have any limitations that would make them not totally comparable to the government-owned and government-operated facilities?
At the end of it, how could we match up the private sector technology and practices with those government-owned and government-operated facilities? I would like to hear from both of you on that.
Mr. Chahal: Our accreditation is in one area only, that being biology DNA, whereas the RCMP labs are accredited in all the forensic disciplines, which include documents, fingerprints, firearms, et cetera. That is the key difference. As far as DNA is concerned, we have the same or similar technology. The same standards apply because SCC has a separate standard for the biology and DNA. They accredit both RCMP labs and private labs to the same standards.
Mr. Murray: Maxxam Analytics has the same accreditation for testing as that held by the RCMP under the Standards Council of Canada. The Centre of Forensic Sciences is accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board. It is the same standard within the umbrella of accreditation with a different organization and a few different metrics. I know that because I was an employee there when it was put in place by the director at that time, Doug Lucas. It is the same umbrella requirements with a different accrediting body, which is again distinct from that in the Quebec provincial lab.
To answer your question directly, Maxxam's accreditation is the same as that of the RCMP. We are held to the same standards. We could be audited by the same individuals. We are audited by the RCMP, but as part of our standing offer, not as part of our accreditation.
To answer the last part of your question with respect to equipment and technologies, the RCMP has a research and development group run by Dr.Fourney. I would suggest that they are more on the cusp of recent technological advances and the placement of that in their laboratory system than we would be in the private sector.
Senator Wallace: Dr. Murray, in your presentation you mentioned that you saw the role of your lab as providing a complementary service to the RCMP and the provincial labs in Quebec and Ontario?
Mr. Murray: Yes, I did.
Senator Wallace: What did you mean by that?
Mr. Murray: To give credit where credit is due, nine years ago the RCMP had the foresight to see that in the future a number of things could come forward that would require more service than they were capable of with their standard staff that was not easily increased. From that proactive thinking, they established a standing offer, which has been competed on by a number of companies, to put a system in place to allow them to overflow casework in times of need. With the ebbs and flows that can occur in the forensic biology business, when a case such as the Pickton murders occurs, to which they have to dedicate a significant amount of their resources, what do they do with the routine casework that comes through the door? When the RCMP and Maxxam came together in a public-private partnership, it worked well for us all. We were able to provide service for routine and regular casework as well as look after the intense matters of the Pickton murders. We were complementary in that way.
The second avenue that speaks to complementarity is that, because we have worked with the RCMP for those nine years, we have essentially marketed ourselves to police agencies across Canada. We have reported to 350 police agencies; even though we are working with the RCMP, we are looked upon by them to ensure that we meet standards and qualifications, and our reports are issued on Maxxam's letter ahead. The police agencies became aware that Maxxam could do the work, and we provide a good quality product.
That allowed them to think outside the box and go to Maxxam when the RCMP could not provide a service at a particular time. From that, Maxxam has developed a clientele that goes directly to them for various needs. They may require expedited service in a particular case; or a Crown Attorney or a police agency may be required to expand their scope of testing from the original items submitted. We have filled the need for that extra service.
Senator Wallace: One reservation that I have heard about with the use of private labs in the DNA system involves the confidentiality of the information you obtain or provide and the privacy of the people from whom you have taken DNA samples. As well, since much of what you develop can find its way into court cases, the continuity of evidence is critically important.
What would each of you say about the issues of privacy, confidentiality and continuity? Are those something that you have been able to satisfy with your private labs working in conjunction with, in particular, the RCMP?
Mr. Chahal: Warnex has been providing these services for six years. We have never had a single issue with confidentiality. We know that we must provide confidential service to our client, which most of the time is law enforcement, not defence counsel. We have the proper policies and procedures in place, which are similar to those of any organization, whether private or government, that is providing confidential forensic DNA testing services.
Senator Wallace: I am sure that you are required to sign confidentiality agreements.
Mr. Chahal: Yes. Some cases we have been asked not to discuss at all because they were resolved using evidence from the RCMP lab. Those files stay confidential. Even though, as a private company, it would be good to talk about high profile cases, we will never discuss them.
I have never encountered any problem in this area. The policies are similar whether labs are private or public. Accreditation looks into those areas as well.
Mr. Murray: I will speak to your questions in reverse order. Continuity is a standard practice in which forensic biologists are educated and trained. That is one of the first things that those of us who have given testimony in court learned, and that includes colleagues from the RCMP. It is very much part of our accreditation and the audit that the RCMP does of us. It is our job. We must be able to ensure continuity. The ultimate judge of that continuity is the court of law. If we dropped the ball on that, we would certainly be told.
Confidentiality applies not only to our standing offer with the RCMP and the other police agencies that we work with but also given in our client-based business. As I have said to many police agencies, I am very interested in their first case, but I am much more interested in their one-hundred-and-first case. If I do not maintain confidentiality in case one or any other case along the way, I am destroying my own business. It is self-preservation for me to ensure confidentiality.
Privacy spans all of what Maxxam does. We do not have time today for me to speak about all the other avenues of our business, but privacy is a big issue at Maxxam in all that we do, including forensic biology and DNA testing. Also, in our paternity business, we need to be somewhat educated on the privacy issues in British Columbia and Alberta where we hold a contract for paternity testing. Our knowledge comes not only from our work in this field but from the other fields in which Maxxam works.
Senator Wallace: Thank you very much. That is very helpful.
[Translation]
Senator Carignan: Based on your presentations, there seems to be a difference in the relationship each of your laboratories has with the RCMP. Could you tell us if there is a difference, and if so, what that is?
I get the impression that one lab in particular — that of Dr. Murray — does the testing, but also has the possibility of doing the comparison or of consulting the data bank to do the comparison, but that is not the case of Dr. Chahal's lab. Is that so or am I wrong?
[English]
Mr. Chahal: Yes, our lab does not submit samples for entry into the data bank. We are providing complementary services because we are the only private lab that has been accredited to perform the mitochondrial DNA technology. That service is not provided by the RCMP lab. If a particular case has a requirement for both DNA technologies, then an investigator will send the regular DNA technology sample to the RCMP lab, and if it requires our specialized forensic DNA technology, the mitochondrial DNA, they will send it to our lab so that they can combine the information. We are not submitting the sample directly to the data bank in question today because no database exists for the second mitochondrial DNA technology. We are mainly limited to suspect cases where an investigator has a suspect. We have a mitochondrial DNA profile from an evidence sample, and they will keep sending the samples from the suspects because there is no data bank for the mitochondrial DNA technology.
[Translation]
Senator Carignan: And that is to be able to then access the data bank; so you do not query the data bank in the same way as Dr. Murray's laboratory can?
The Chair: I do not think that is quite accurate.
[English]
Mr. Murray, you can submit material for insertion into the DNA data bank, but you cannot go into it and use it yourself, can you?
Mr. Murray: You are correct. If I may, my relationship with the National DNA Data Bank is indirect and is sanctioned and reviewed by and through the RCMP and my standing offer agreement with them. If I receive a case from the RCMP and I process that case from beginning to end and generate a profile that is available for consideration to upload to the National DNA Data Bank, there is a specific procedure, policy and, in fact, form that needs to be created by us, reviewed by us, and submitted for consideration to the RCMP with an appropriate review of file material. The decision is made by them as to whether it is appropriate for upload into the National DNA Data Bank. I do not have direct access, and it functions that way for me through the standing offer.
The only other comment I would make to that is that we have worked with the RCMP. I know Peter Henschel was before you earlier. He issued a memo that said at this moment in time, Maxxam Analytics is the only laboratory a police agency can work with because we have passed an RCMP or a government audit, and if we generate DNA profiles directly between the police agency and ourselves independent of the involvement of the standing offer of the RCMP, it will still be available for consideration for upload to the data bank. Again, I credit the RCMP on this issue. We discussed it frequently during our nine-year tenure, and it was a smart measure on their part to allow the most effective use of data generated out there. Whether it is generated by them or Maxxam, it can go into the data bank and be used as the tool that it was meant to be, a public-safety tool. We can identify relationships between crime scenes and convicted offenders or between crime scenes and assist police investigations.
[Translation]
The Chair: I think Senator Joyal has a supplementary question; we can then come back to Senator Carignan.
Senator Carignan: If I may, I could finish since it is my last question.
So you create a data bank and you have your own files and profiles. I understand that you are bound by confidentiality agreements, but, if you were to go bankrupt or transfer ownership, some problems could still arise. In your contract with the RCMP, in the event of bankruptcy or sale, do you automatically transfer these data to the RCMP or do you keep them?
[English]
Mr. Murray: I will take the questions one at a time. With respect to me having a data bank, I do not have one.
The case files and profiles are actually the possession of the RCMP. If I can walk you through that, I return the exhibits to the police agency that submits them to me. Any samples or subsamples generated from that are returned to a DNA repository because they do not belong to me; they belong to the investigating agency. Case files are returned to the RCMP on a regular basis. We simply deliver them to them because, under the standing offer agreement, they are in fact theirs and their work.
If we were to go bankrupt or to be sold, all of the material is really the possession of the RCMP. They can ask for it at any particular time. It is returned to them regularly. We do not keep or possess any of it. I do not hold, as part of my contract, anything and would not consider it my possession thus creating liability for the RCMP or a potential miscarriage of justice. I do not think that is a problem that exists.
If the RCMP was ever uncomfortable with its relationship with Maxxam, they have essentially an out-clause that they could exercise. That relationship would be terminated in a short period of time, things would be closed down and returned, and we would finish cases. Similar to the situation when I left the Centre of Forensic Sciences in the public sector and moved to the private sector, I then, after that, had to maintain my obligations to the casework that I did then as Maxxam or that Maxxam staff would have to do now going forward. At the end of the day, if I receive a subpoena to go to court, I am required to attend, required to assist, required to testify and be objective as a scientist, period. That is the law.
Senator Joyal: I will come back to an issue that Senator Carignan has raised, but it might be useful for everyone around this table if you described the distinction between nuclear analysis and mitochondrial DNA. I am not a biologist. What is the essential division between the two analyses? We seem to understand what you say, I am sure many people have questions on it.
The Chair: Could you answer that one now for the sake of all the non-biologists around the table?
Mr. Chahal: Do you have the handout or the PowerPoint presentation in front of you?
The Chair: Yes, this one.
Mr. Chahal: If you look at page 1, slide 3, the circle you see is a schematic diagram of a single human cell,. In the middle of the circle is what we call the nucleus of the cell. That is where the nuclear DNA comes from, and it comes as 50 per cent from the mother and 50 per cent from the father. We have only two copies. When I say we are accredited in four DNA technologies, three of these technologies are nuclear, so they are there in the centre. We are dealing with nuclear DNA.
If you look outside the nucleus, you see many dots. That is where the mitochondrial DNA is. These are cellular organelles that are involved in our cell function, but, at the same time, they also have DNA that is inherited only in the maternal lineage. For example, my mitochondrial DNA is the same as my brother's, sister's and mother's. My mother's DNA is the same as her mother's. It involves the maternal lineage.
The advantage of this DNA is that now we are not talking about only two copies per cell but hundreds of copies per cell. That is how we were able to identify World War II soldiers and the case of a Halifax bomber. This DNA is small and can stay around for many years because there are so many copies. We are not dealing with only two copies. It can be found in all skeletal remains and is related to the issue I raised concerning unidentified human remains. That is why this DNA is so important.
Having said that, the reason people are not using this technology on all samples is because it has its own drawbacks. It has advantages in certain casework situations and disadvantages in others. The regular DNA technology that is used by the RCMP lab is still the golden standard, but that technology cannot be used in all situations. For example, you always see shed hairs at crime scenes and on victims' clothing from sexual assault cases. Hair does not have regular DNA; it only has mitochondrial DNA. The very first court case we did involved shed hair from a stolen car where a suspect killed the owner of the car and then killed a store owner in a robbery of firearms. Out of all the vacuumed hair we received from the car, to our surprise, they were all shed hair, so regular DNA technology could not be used, and shed hair was the only evidence available. When we did the mitochondrial DNA testing on the hairs, as expected, most of the hair matched the owner of the car, some matched the wife of the owner and only three hairs matched the suspect who was supposed to be in the car as well. That is where the power of this technology is.
The disadvantage is that it is less discriminatory because my mother and siblings have the same mitotype as I have.
The Chair: Here is a question based on profound ignorance: If everyone's DNA is different, how can my mitochondrial DNA be the same as my mother's, or is it just that there are sufficient similarities through the generations?
Mr. Chahal: Theoretically, your DNA is identical to your mother's DNA because it takes many generations for any change to happen in mitochondrial DNA.
The Chair: How do you know whether I committed the murder or my mother did, may she rest in peace?
Mr. Chahal: You cannot tell. That is where the investigator, based on the non-genetic evidence, rules out all maternal relatives.
The Chair: I told you, profound ignorance and misunder-standing. Senator Runciman, I apologize for missing you earlier, but you are on the list; you will definitely get your turn.
[Translation]
Senator Boisvenu: I am also interested in Senator Joyal's question. More specifically, is the scientific process of the two methods of DNA testing the same? Is the cost the same? Is the scientific value the same legally?
[English]
Mr. Chahal: To answer that question, the scientific process is similar in a way that when we isolate the DNA from the evidence of a crime scene sample, we isolate total DNA, both DNAs. After that, the way we analyze it is different. At the end of the day, with respect to mitochondrial DNA and regular DNA, we develop what we call a DNA profile, and the mitochondrial and nuclear DNA profiles are different.
To answer your question in terms of probative value, if we have to use mitochondrial DNA for exclusionary purposes, it is the same value. If the person is excluded, they are excluded. However, if we must use the DNA for matching purposes, we cannot call it a unique identifier as with regular DNA technology because with regular nuclear DNA technology, everyone's DNA is different except for identical twins. In the case of mitochondrial DNA, if we are maternally related going back many generations, we will still have the same DNA. In terms of probative value, that is where there is an issue.
The recommendation is that if you can use the nuclear DNA technology, go ahead with it as it is more discriminatory. If you cannot, then you turn to this technology, which is less discriminatory, but it has been used in hundreds of cases in the U.S. since 1996. It is being used in Canada as well.
[Translation]
Senator Boisvenu: Is the cost of the lab work the same?
[English]
Mr. Chahal: That is why we find hardly any mitochondrial DNA labs in Canada. We are the only private lab. It is very expensive. It is roughly four times more expensive to do mitochondrial DNA than regular DNA.
Having said that, not as much of a need exists for this technology in regular casework either because, for example, regular technology can be used in sexual assault cases. There is a need for this technology in cases of identifying missing persons, skeletal remains or when not enough DNA is available. That is what we call an insufficient nuclear DNA case because there are only two nuclear DNA copies, but we still have hundreds of copies of the second type of DNA, mitochondrial DNA. We use it in those cases. It is a very expensive and time-consuming method, but it has its own place in forensic casework.
[Translation]
Senator Boisvenu: When we met with officials from Quebec, Mr. Dufour made two comments. The first comment was about the rise in requests from police forces for DNA testing, which have increased sixfold since around 2001. Have you noticed a similar spike in requests?
[English]
Mr. Chahal: For the second technology that I am talking about, when we started our company in 2003, and we were accredited in 2004, we had very few cases over the whole year. Now our cases have grown by probably 10 times with the awareness of this technology because it is still relatively new technology. Once it finds its way into the National DNA Data Bank, then it will be even more popular, but it will never be to the same extent as regular DNA technology. I would say that regular DNA technology will always be 95 per cent-plus work, and less than 5 per cent of cases will go to mitochondrial DNA technology.
Mr. Murray: The answer to that is a definitive, yes, both in public sector work and private sector work.
As part of this forensics biology society, we create or have created our own work. I started in this field in early 1991. At that time, the technology was not as sensitive, and we could not test the types of things that we do today. Now it is blood flakes and single hairs and things that we would never have envisioned that we could do in 1991.
With the increase in sensitivity and the change in technology, we have the ability to analyze smaller particles and do them faster. Even with the CSI effect in terms of what we can potentially do now, I have seen an explosion of requests for DNA testing, first in the public sector as it grew there and now in the private sector. I think the issue is really about doing as much as we can because it is extremely impactful to policing and public safety. Thus, it has become the request that it has.
When I started, no one knew of DNA technology. The acronym "DNA" stood for "do not ask" because people did not understand it at the time. From that, it grew into an appreciation for the fact that this had real power, and it was a gift of forensic science that does not come along that often. Now, everyone wants it or wants to use it.
When we became accredited in 2000 as a private laboratory, I remember the article in The Toronto Star at the time, written by a friend of mine, which said that this amazing technology is now available to the average citizen, which it is. Not only do we do this in policing and policing efforts, but a person who goes out in their backyard in the morning and maybe finds some blood out there and is not sure whether that blood is human or animal or what it could potentially be related to can pick up a phone and phone a lab and get some help. In most circles, it is not available through the public sector. Medical practitioners, lawyers, and others, have places to go now. We work for food companies and accident reconstruction for forensic engineering, where DNA testing can answer many of questions that help those disciplines.
Both in policing and outside of policing, explosion of requests for testing has occurred.
[Translation]
Senator Boisvenu: When you do DNA testing for a court, do you appear as an expert witness? We met with Quebec or RCMP people who seemed to have doubts as to whether the tests had more probative value in court if they had been done by the government than if they had been done by the private sector.
When you do a DNA test for a police force, are you called upon to testify as an expert witness? And legally, does it have the same value as when a public official does it?
[English]
Mr. Murray: The answer to that question is, yes, for several reasons. The senator over here was giving a definitive, yes. I have testified 70 times in courts of law, mostly in the public sector when I was an employee there; a limited amount in the private sector.
Through our standing offer with the RCMP, my colleague Mr. Westecott testifies more often than I do now. Not as often as we used to in the past when it was less accepted as a technology, but, yes, we testify.
In an effort to try to answer your question somewhat, we were concerned when we established this private sector laboratory that this was new and novel and that people would essentially take a run at us to see if we were valid and experts and able to defend this work as well as conduct it reputably. That is why we built the lab the way that we did; we built the accreditation first. We had this novel approach of hiring people that were public sector employees and building from a foundation up. I think that, along with the accreditation that we achieved and our longstanding relationship with the RCMP, has given us credibility where we do not go to court and answer the question or speak to the question of whether we are as reputable as the public system.
We are equally reputable in what we do, and that is appreciated.
Mr. Chahal: As an expert witness, since I am testifying for both the defence and the prosecution, it is seen that I am more unbiased. When I see the court document after my testimony, I find good comments, for example, that I was unbiased, impartial or just presenting the science. Having said that, the government expert witness will do the same thing. It is just the perception. Since we are doing the work both for the defence and for the prosecution, it is taken in a good way that we are presenting only science. We are the expert witness for the science for the case in question.
[Translation]
Senator Boisvenu: I have another question on a topic that I am very interested in; obviously, it has to do with missing persons. You have talked about a missing persons DNA index. I fully agree with the four benefits you mentioned since I have heard families of missing persons talk about them.
In May 2006, Bill C-279 provided for the creation of a missing persons DNA index. Did you participate in the work of the Senate committee that, at the time, had proposed establishing such an index?
[English]
Mr. Chahal: No. It was mainly the work of Dr. Ron Fourney, who brought forward this whole issue of a mitochondrial DNA database or a missing persons index. At that time, our company was small. Most of my work did not go to that extent. It was just starting this technology in-house. Most of the emphasis was there, but much of the work was done by Dr. Ron Fourney, who, I think, appeared before this committee about that. I am aware of that, and I hope that a missing persons index will become part of the National DNA Data Bank one day as it is happening in the U.S. as a part of their DNA data bank.
Senator Boisvenu: Thank you.
Mr. Murray: I agree. We were not consulted as part of that bill. However, in a different way, we had discussions about three years ago with the RCMP as it relates to a missing persons index.
If I remember the original consultation paper that was proposed prior to the current existence of the National DNA Data Bank, it actually had three prongs to it: It had a crime scene index, a convicted offender index, and a provision for a missing persons index — if I remember that correctly.
For a number of reasons that I do not necessarily know all about, the missing persons index was set aside with the focus to be on the crime scene and the convicted offender indexes to get this off the ground and to really focus on that and make it a useful investigative tool for police agencies.
It has always been there as a possibility and something that is discussed. We had direct discussions with the RCMP. In fact, I think even the molecular world had those discussions in terms of ways in which we may be able to contribute. If it was outsourced, what would be the costs? Could you handle the volume? Could you take and change the technology needed to do so? We have had those consultations in that respect, but not specific to the bill.
Senator Baker: Welcome to the witnesses here. The three of you have been declared expert witnesses before our lower courts and our superior courts in the nation. Dr. Murray, you date back to the mid-1990s, as I recall. You have been taken over by Martin Westecott in recent case law. I suppose that is because you were working for the National DNA Data Bank at that time, and now you do not.
On the question as to how good you are compared to the government services or the RCMP, Mr. Westecott, I take note in R. v. Godin, in 2007, Superior Court, the judge had to determine whether or not Mr. Westecott had conducted things up to the RCMP standard. At paragraph 75, it says that "Mr. Westecott used a method somewhat different from that used by the RCMP. Mr. Westecott testified that the difference between what he did and what he understands the RCMP does is that he went one step further." That is a testimony to your excellence.
I come back now to Dr. Chahal. The reason why we have not seen much in case law is that, as I understand it, the mitochondrial DNA testing was not part of forensic science prior to 2005 or 2004. I got that from the headnotes of R. v. Woodcock. It was not part of the science prior to that, is that correct? It was only on the retrial on that case that your testimony was used, and you were declared the ultimate expert on that technology.
Mr. Chahal: Yes. I testified in that case for three days, I believe, during the pretrial and three days during the trial. That was the second case. The first was in 1999, the R. v. Murrin case, and that work was done by Forensic Science Service U.K. Testimony was also given by the FBI lab, as they had a lab as well at that time.
We were late in introducing the mitochondrial DNA technology because no private or government lab was providing the service. There is now a university-run lab, also in Thunder Bay, called Lakehead University Paleo-DNA Laboratory. We now have two labs in Canada accredited in the technology.
Senator Baker: You did your PhD in Guelph, I believe.
Mr. Chahal: Yes.
Senator Baker: You did your undergraduate there and then went to the United States to work in this area.
Mr. Chahal: I believe that my history is in the transcript of the R. v. Woodcock case.
Senator Baker: This question is for all three of you. We are the place of sober second thought. We have the final word when it comes to legislation, and we are doing an examination of the National DNA Data Bank. We heard testimony in previous days that the government-run labs are so busy that they cannot even pursue secondary offences.
In the past two years, we passed a law that a DNA warrant can be issued that covers designated offences, and designated offences are defined as primary offences and secondary offences.
We are seeing case after case, especially sexual assault cases with violence, being thrown out of court because of the time that it takes to get the DNA analysis done. The Supreme Court of Canada last year gave a decision justifying the stay of proceedings in the famous case of R. v. Godin. They upheld the stay because it took over nine months to get the DNA analysis done. Section 11(b) of the Canadian Charter of Rights and Freedoms says that you must have your trial within a reasonable period of time, and these results are not being produced.
The government labs are saying that they are overworked. Could you people not be doing the work that they are not doing, or is there a problem with that?
Mr. Murray: On the last point, we are doing some of that work, both inside the standing offer and outside. Whether we are doing enough of it is a resource issue, and perhaps a funding issue, that transcends several boundaries. I do not think that the police have enough money in their budgets to set up a $250,000 contract with Maxxam Analytics for case work, although I know that in crisis situations — crisis being risk, time management, active perpetrator still at large — they will spend the money. I have had police officers put the cost of the work on their personal credit cards.
I am not assigning any fault, but with the fiscal restraint that exists, police agencies and forensic laboratories must make difficult decisions about what can be done. We are continually being asked to do more — more in the same case, more on colder cases and more comparisons through DNA data banks. There is an explosion of work that can be done.
I think there is a synergy that can be furthered between public sector and private sector to help address some of these issues. Examples of that were spoken to by the previous witnesses from the RCMP and the Centre of Forensic Sciences, CFS. On high-volume crime projects, the RCMP are continually striving to better their technology and become faster.
I think the efforts are being made. Some very bright people are looking to influence change there, but more funding resources at several levels would help with this problem.
Senator Baker: The real concern is not only with the sexual-assault-with-violence cases. In the judgment of the Supreme Court of Canada on June 4, 2009, they said in the headnote that the Crown offered no explanation for the delay in receiving forensic DNA analysis.
As well, in crimes of robbery with a mask and robbery with violence, we see case after case, such as one from Newfoundland in the past year, dismissed because of the inability of the police to obtain forensic science services in a timely fashion. At our last committee meeting, witnesses from government labs said that they cannot even touch secondary offences.
You are saying that perhaps the problem is money. You do not think that you are the problem, do you? If the money were there, could you fulfill the duties that are not being fulfilled now?
Mr. Murray: I am a big fan of complementarity and public-private-sector partnerships. We can bring together strengths from the public sector, which are numerous, and from the private sector, which are also numerous, and work toward solving the problems. We could decrease time delays, expand the scope of service to secondary offences and increase the power of the National DNA Data Bank. Funding well spent would be a start, and there are ways in which we can work together to make that happen.
Senator Baker: We have a whole list of secondary offences. You know what they are. A bill was recently passed in the Senate that declared these secondary offences as designated offences for which a DNA warrant is issued by a provincial court judge. We have people who do analysis claiming that they cannot do it. Well, if you do not have the evidence, you cannot prosecute someone, and you do not deserve to, but it is leading to a crisis in the courts. People accused of sexual assault with violence are getting off under section 11(b) of the Charter, as we see in case law.
Your opinion is that this problem could be solved with some cooperation by the people who are prosecuting these offences if the funds were available to give contracts to private companies to do the work when the government services cannot do it. Is that correct?
Mr. Murray: I believe that private enterprise can contribute to the solution. We are not solely the solution. It requires a team effort. We can contribute to solving that problem collectively.
Senator Baker: I congratulate the witnesses for the great job they have done in the courts. I have read the decisions, and they have done a great job.
The Chair: Thank you, Senator Baker.
Senator Joyal: I would like to come back to one issue that is important for us around this table, and it was raised in the Auditor General of Canada's 2007 report. I do not know whether you are aware that the Auditor General audited the National DNA Data Bank and came up with some recommendations and conclusions. One of those conclusions was that the forensic lab quality management system of the National DNA Data Bank was not functioning as designed and could not provide assurance of quality to senior management. This is a pretty serious kind of judgment or evaluation of the functioning of the data bank. Fortunately, we were told that the Auditor General was back at the data bank to see what kind of improvement or initiatives were taken by the bank to improve the quality system. Furthermore, last week we heard last week from Mr. Tessarolo from the Ontario data bank, who confirmed to us that the Ontario Auditor General is with the Ontario forensic centre to audit the procedure. We asked the same question of the representative of the Quebec laboratory.
Since those three data banks are public institutions, we can rely on a system of quality control and management of the quality control in them, but in relation to your lab, who would act in lieu of the Auditor General to ensure that the quality management of your lab gives the same kind of standards that we can assure that the public institution would serve?
Mr. Chahal: One means of assurance is the accreditation body, such as the Standards Council of Canada. It is the same accreditation organization that accredits private and government labs. That is one surety. Another is that before the contract is given, the government lab inspects the lab to ensure that the quality, procedures and other matters are similar. Checks and balances exist, and the external audit is the audit by the client, which in this case will be the RCMP.
We believe in oversight by the government body. For example, the data bank in the U.S. is outsourced to all the private labs, in the thousands, but the government lab has oversight. It is the same data bank system. That is why they have 7 million plus samples in the data bank. Most of the work, or at least a significant amount of it, is done by the private companies, but government has the oversight over the quality. One way they do that is by sending quality control samples. They look at their data. They inspect those private labs, and before the data is even uploaded, it is also looked after.
Senator Joyal: Your answer to me is that it is up to the customer, that is, the government, to satisfy itself that the quality management meets the standards that the government bank itself has submitted to, but it is also under the scrutiny of a third party, which happens to be the Auditor General in relation to either Ontario, Quebec or the federal government.
Mr. Chahal: In our case, it is the Standards Council of Canada accreditation. Since we are a private company, I cannot answer a question about the relationship of the private company with the Auditor General's office.
Senator Joyal: No, no. I understand. The labs, anyway, are certified or accredited. The Ontario lab is accredited. The Quebec lab is accredited. Your lab is accredited. They are all accredited. Nevertheless, the Auditor General of Canada finds out that the quality management system was not functioning. It is not because a lab is certified or accredited that the quality management system is meeting its objectives. Do you understand the nuance between the two?
You tell me that if a customer, that is, a government, a municipal police or the RCMP or the Ontario Provincial Police or whichever provincial police is at stake, comes to me and asks me to do an analysis, be it, as you said, nuclear or mitochondrial, they have to satisfy themselves that we meet the quality management system that ensures that our results are foolproof and that they will stand the test. That is essentially what you tell me, unless I have misunderstood your answer.
Mr. Chahal: Yes, the accreditation body is the external body. The client, which will be the municipal police or the RCMP, will ensure that where the samples are going the quality system is at par with the government lab. As well, we are already being scrutinized in the court system; you have seen my court documents. If we are doing something wrong and it comes up in the court, we have to pretty much shut down the lab. Being a private company, the shareholders will take their money away pretty fast, so we are under a lot of pressure from that perspective to provide quality services.
Senator Joyal: Dr. Murray?
Mr. Murray: My comment in that regard would echo that sentiment, and I would suggest maybe it rolls out this way. Yes, the Auditor General has no scope to come and take a look at my lab, but the issue around accrediting bodies is one of independence and objectivity, and a different number of experts in the field come and view my operation every two years, whether it be for Standards Council of Canada or Forensic Quality Services. That is my first step in a stamp of approval that I am a quality organization and I follow these standards.
For me, that is also complemented by the fact that the RCMP performs a role as my Auditor General, because over and above those audits, they perform their own to make sure that I am following what they need as a client.
I am also audited by the court system when I go to court and testify before Crown attorneys and judges, and I know the RCMP monitors the testimony that we give and sends out client questionnaires asking about the work we do, whether it was done well, what the quality of our reports is and whether the language in our reports is clear and concise and the conclusions are understandable.
I would suggest that the auditor general function for us in the private sector at this point in time is a multitude of individuals or bodies accrediting — RCMP, court system, clients in general, and the standards inside of accreditation in particular. That is how we are audited.
Senator Joyal: Yes, you are audited at par with the RCMP because they are submitted to exactly the same kind of test.
I am trying to understand whether we could transfer everything to the private sector and be satisfied with it, or whether we should maintain a government or public institution that would establish the standards of quality control. We have a third party, which happens to be an institution called the Auditor General, who can come when the person or institution feels it has to and inspect the quality management system. At the end, the results, as you know, put people in prison or not, which is pretty serious, or identify people who happen to be missing, which is also a serious public issue. That is the point I want to understand from your statement today. Do we need a public national data bank to be sure that the standards are established there and those standards are followed up, as you said, by the private sector? The private sector has an important role to play. I am not challenging that at all. I am trying to see the specific role of each and every one of you.
Mr. Chahal: There will always be a place for government oversight. We see in the examples from the U.K. that it is a private-public partnership with what started as a public system. In the U.S., it is again a private-public partnership. It is already established and proven that the system works as long as there is a government body with oversight over the overall system because we are dealing with forensic casework.
Senator Joyal: Thank you.
Senator Runciman: Following up on a comment you made earlier, Dr. Chahal, with respect to appearing in court as an expert witness, you said that you are perhaps perceived as having less bias. Maybe I misinterpreted, but I thought I heard you say that. I am wondering whether that is the sense all three of you have when you appear as expert witnesses.
I am relating this to one of the Commons committees that looked at this issue and suggested that other provinces and territories should be moving in the direction of Ontario and Quebec in having this separation between police and the analytical work that you are engaged in. I wonder what your sense is when you appear in court. Do you think there is that kind of perception in terms of your testimony versus someone representing the RCMP?
Mr. Chahal: These are comments that do not go into the transcript or court documents. This is what comes out when both parties talk to you afterwards, such as "you did a good job" or "you presented well." Every time I have testified for the prosecution, the defence counsel has come to me and said I did a good job, that I was really presenting the science.
Again, having said that, it is only a perception because if someone is a competent and qualified expert witness from the government lab, they will do the same thing. We are all, at the end of the day, scientists or molecular biologists, so we are supposed to present what the science says. It is not an issue; it is more of a perception. Those are my comments.
Mr. Murray: Having spent time in both the public and private sectors, one of the things we try to focus on in our training and in our daily duties is to be scientifically objective and unbiased. I do not know that is specific to an organization, be it public or private. I think potentially it can be more specific to the person. Generally, it shows up in the way you testify and the words that you have to say.
I do not think there is bias more in the private sector, less in the public sector, whatever that direction is. In my experience, it has to do with the training, comfort level and experience of the scientists themselves. We all strive to be objective and to represent the science as best we can. We try to educate Crown attorneys, defence lawyers, judges and juries such that they understand what we do. Considering our training, that is a bit of a job itself. I think it is specific to the person, and I do not think anyone is trying to be unbiased.
Senator Runciman: I have a couple of brief comments following on Senator Baker's call for privatization. Dr. Murray, you talked about providing a complementary service. I appreciate that. We have been flooded with reports in the last 24 hours, but I am referencing one specifically, a DNA Forensic Laboratory Services cost and capacity review, which was prepared by Government Consulting Services, GCS, and dated November 30, 2009.
Page 17 says that GCS would have expected that the RCMP's timeliness and backlog would have improved as resources and technology become available. The scenario is based on the fact that the RCMP has significantly more automation in place than other labs, yet it is only able to meet similar levels of output as Ontario and Quebec with approximately double the number of employees in Ontario. With the available technology, GCS estimates that there is excess capacity with the current operational capacity design.
Where I am leading on this is with respect to the whole issue of the private sector playing a greater role. I am not expecting for you to comment on performance levels within the RCMP operation, but certainty it should be an area that this committee looks at. I do not believe it has ever been fully assessed at the federal level. I know we received a document, I gather just in the last day or two, from the director of the Centre of Forensic Sciences based on questions related to privatization that came up when he appeared. This document debunks the advantages or any perceived advantages of greater involvement in the private sector.
Some of these comments seem counter to what you are saying about the kinds of services you provide, the credibility both of your organizations have and the expertise that you are able to bring to the table.
I am not sure, Madam Chair, whether it would be appropriate to provide the witnesses with a copy of this material.
The Chair: I think it would certainly be appropriate; it is basically a public document. It is available to committee members. What might be stretching it a little bit is to ask them to respond to it immediately.
We can provide them with copies of the document in question, and if you could ask them the questions you would like them to answer, we could ask them to write back to us as quickly as possible once they have had time to reflect a little bit on the document.
Senator Runciman: Yes, I will do that. Thank you. Looking over this document, three assessments have been done in Ontario but nothing federally to look at this question. The assessments have essentially been in-house, with the exception of Justice Archie Campbell's review in the Bernardo case. Justice Campbell has comments that your testimony here today would take issue with concerning greater involvement of the private sector.
Where I am headed is this: I think it would be appropriate for us to consider as a committee asking the government to consider a thorough evaluation of the benefits and non-benefits of greater participation of the private sector with respect to this issue.
If you look at what the House of Commons committee recommended in terms of transferring these responsibilities to other jurisdictions, I think that is highly unlikely. I think we probably have to take the bull by the horns at the federal level if we want to come to grips with this. I do not think you will see these other jurisdictions moving into this arena if they can at all avoid it.
That is where I am going, and I will certainly discuss this with the witnesses. This is not a lengthy document, and I think perhaps they could pick the places they wish to respond to or not respond to and give us their feedback in whatever they think is an appropriate timeline.
The Chair: Before you leave this room, we will give you copies of the document, and we will look forward to getting letters back from you. If you do not wish to comment, we would appreciate a letter saying "no comment." That way, we can close off that particular sub-file.
Mr. Murray: I will take the first step on that. I was afforded the opportunity to see Mr. Tessarolo's comments. He was a colleague of mine when I was at the Centre of Forensic Sciences, and one of my requests would have been to receive the document he promised to the committee. Thank you for bringing it up, and we will definitely comment.
[Translation]
Senator Rivest: My question is about the management, more specifically, protecting the confidentiality of the samples. By definition, these measures are secret. In broad terms, what types of measures are you taking to protect the confidentiality of the samples? Are these measures similar to those taken by the public sector, the police, the data bank and others? Do you have evaluation mechanisms to make sure that the measures taken are effective? There is clearly a difference. One thing people may worry about is the staff. After all, the public sector and police forces have taken an oath of office, which you do not have in the private sector regardless of how professional the staff may be.
Could you give the committee an idea of the protection measures you use to ensure that the confidentiality of samples is protected?
[English]
Mr. Chahal: With Warnex, our corporate lawyers wrote these documents, which explain that they will be working with confidential information. All new employees must sign that document. Plus, it is a part of the training for new employees. The group that deals with forensic sciences is a small group; we know each other. Everyone understands what is important, but there is a formal mechanism in place. All employees must sign a confidentiality agreement as part of their employment, before they even get into the lab.
Mr. Murray: A similar situation exists for Maxxam. All employees across the company, not just in this particular avenue of work, must sign a confidentiality agreement. We are scrutinized by our version of auditors general. Over and above that, as it relates to the standing offer we have with the RCMP, we have security clearances for our facility and for each of the staff members that are employed in this work to the level of an enhanced reliability, such that we are mandated with this relationship we have with them. Those are some of the ways we go about assuring the confidence and privacy issues that we have related to this type of testing.
Martin Westecott, Supervisor/Forensic Biologist, Maxxam Analytics: The security clearance is through the RCMP as well as Public Works and Government Services Canada. Another measure we put in place for our casework, whether with the RCMP or where it is available to police agencies, is that everything is encrypted and sent out to ensure that only those who are within the encrypted software can access that information. Whether it is inside an email that goes to the RCMP or to a police officer, it is through secure channels.
Senator Patterson: The witnesses, in particular Dr. Murray, talked about the rapid changes in technology that have taken place in recent years. I know you worked with the DNA Identification Act since its coming into force in 2000. In your experience, is the act adequate to allow police and other people investigating crimes to take full advantage of these technological advances? Is it working okay, or are changes required?
Mr. Murray: I think the changes that have occurred in the act over its 10-year existence would drive me toward a yes in answer to your question. We continually improve what we do and what the act mandates that we do, subject to Senator Baker's concerns. I think the data that has come out of the act, and the National DNA Data Bank in particular, is a success story. Can it be heightened or potentially improved? Could more work be done? That is subject to discussion, but I do not think anyone can argue with the fact that it has been a success. We can argue about whether it was a success fast enough, or a big enough success, but it is a valuable tool from this standpoint.
As a service provider in the private sector, I have had conversations with police agencies about their being able to take the data we generate when they come directly to me without RCMP involvement. They continually ask — and this started five years ago — to find a way for that to make its way into the data bank. Our eventual discussions with the RCMP almost two years ago allowed that to occur. That is an example of progressive work by each of us, together, to continue to make it better over and above the sorts of things that would be done by this committee.
I see it as a success, and I see it as a continual improvement on success.
Senator Patterson: We tend to measure success in the number of successful hits — I think that is the term that was used.
Does the work of this kind of analysis play an equally important role in terms of exonerating the innocent? Is data collected on that as well? Is that showing results as well?
Mr. Murray: I think that question might better be asked of Dr. Fourney in his role and responsibility that relates to the National DNA Data Bank.
If you look at the provisions under which the data bank was established, link crime scene to crime scene and crime scene to convicted offender, one of the things in there is the exoneration of suspects. My answer to your question is yes, it works in that capacity. I do not have statistics and data to support that, but it is mandated and it is a functioning part of the National DNA Data Bank.
Senator Raine: Thank you very much for being here. I am finding this fascinating.
First, I would like to ask Dr. Murray whether you support the creation of a missing persons index? I know that Dr. Chahal mentioned he thought it was a good idea. What concerns would arise if a missing persons index were created? Perhaps both of you could answer that.
Mr. Murray: I will answer the first question then Dr. Chahal can take the second one.
Yes, I do support it. As I mentioned earlier, it was part of the original operations paper on this. I think it is of concern to Canadian citizens. Someone at the table brought up the fact that there are a number of missing people and unidentified remains. In the 20 years I have been doing this, for the victims I have dealt with or potentially been associated with, it is about closure. From that perspective, if the index goes to provide closure, I think it is valuable. It would require funding and money associated with it, to go a bit to the second part of your question, but it is another valuable tool to put in your toolbox that speaks to some of the desires of Canadian citizens and the eventual closure of these types of matters.
Mr. Chahal: I am a strong supporter of a missing persons index. It is not only that introducing mitochondrial DNA technology, the second technology as I call it, is important for missing persons, but if we had that technology in the data bank it could be used even for crime scene purposes. If the only evidence that was left could not be tested by regular technology, only the second technology could be used. If we did not have the second technology, there would be no DNA evidence at all.
There is a place for the second DNA technology in the data bank. I am a strong supporter of that, which is why I gave you one document, my opening statement. Already, the FBI has looked into the issue. They have created a missing persons database. It is working there.
Senator Raine: Is there a difference in cost in determining the two different types of DNA?
Mr. Chahal: It is a cost issue at this stage. Costs can be controlled by the volume. If we see how many hundreds of missing persons' remains there are out there, and if we know there will be provisions for the mitochondrial technology, then the cost will go down. We are just relying on isolated work, for example a hair shed at the crime scene, or coroners' offices are handling missing persons cases. We are not introducing any sort of automation. Once we know that, we will be doing work on the samples from the missing person's relative, because they have to submit the samples; we will be doing mitochondrial DNA testing of personal effects; and we will be doing mitochondrial DNA testing of unidentified human remains. Then we are talking about the volume. The cost will never be the same as the regular DNA testing because that is more volume, but it will be drastically reduced if there are provisions for this technology. Plus, any time this technology is introduced, there will be competition. As you can see in the U.S. with the convicted offender data bank, the prices at private labs are going down because there are many private companies bidding on the work and they are doing thousands of samples.
Senator Raine: It has been reported that DNA can now be synthesized, which raises the issue of its being planted at crime scenes to implicate innocent people. Can tests be done to differentiate between natural and artificial DNA?
Mr. Chahal: There was a report in The Globe and Mail that DNA can be fabricated. Yes, DNA can be synthesized. We use synthetic pieces in the present technology to pull the markers we are interested in. DNA can be synthesized, but why would someone have to synthesize it? There are easy ways to implant DNA. You can take a mouth swab or touch a surface with a cup someone has drunk from.
DNA can be synthesized. It is already being synthesized in smaller pieces and can be synthesized in longer pieces as well, but it will not be a big issue from the forensic casework perspective.
People discuss contamination and other such issues regarding DNA, but with the present DNA technology there is no way to create someone's DNA profile. The chances of doing so are one in a quadrillion or so. Additionally, if someone has contaminated a person's DNA profile, the suspect is already excluded.
When people know more about the technology, they will know that there is no way to create someone's profile. The chance of doing that would be similar to the chance of matching a DNA profile.
The Chair: However, you could create an imaginary profile that could have the effect of exonerating the real criminal, could you not?
Mr. Chahal: I agree with that. You can create a profile that will cause exclusion, but you cannot create a profile, from an investigative point of view, to plant evidence. I was answering from that perspective.
From a criminal's point of view, can they take someone's DNA or get a synthetic piece in order to eventually exclude someone? Yes, they can.
Mr. Murray: My comment on that is from the practical standpoint. Obtaining the necessary machinery is so cost prohibitive as to bar people from doing this. You can collect 20 cigarette butts from the street and contaminate a crime scene that way very quickly, efficiently and, unfortunately, potentially very effectively.
As to whether you can distinguish between synthetic DNA and normal DNA, I am not sure I am on the leading edge of that research. Dr. Fourney may be closer to that than I. From my drugs-of-abuse testing laboratory I know that there are tests to distinguish between authentic and synthetic urine that did not exist a number of years ago. Welcome to science and its progression. If we cannot yet distinguish between synthetic and normal DNA, maybe some day we will be able to, should it become an issue.
The Chair: Dr. Chahal, is Warnex Inc., your parent company, a Canadian-owned company?
Mr. Chahal: Yes, it is a Canadian-owned company, and it is on the Toronto Stock Exchange.
The Chair: You have one principal lab in Thunder Bay; is that correct?
Mr. Chahal: We have only one forensic DNA lab, and it is in Thunder Bay. We were a small company called Molecular World. Our name changed in June 2009 when this large public company bought us. We are now a subsidiary of the bigger company. We do all the forensic casework in our Thunder Bay division. Our head office is in Laval, Quebec, where all work related to pharmaceuticals, genetic and medical testing is done. We have a small DNA portion in Laval that does paternity DNA testing or relationship DNA testing, but not forensic DNA testing.
The Chair: Dr. Murray, of your company's 32 labs, how many do DNA work?
Mr. Murray: Our DNA work is consolidated into one location in Guelph, Ontario, for all requirements of the work that we have, be it security, facility issues or technology issues.
The Chair: You have contracts with the RCMP. Do you have comparable contracts with police forces in Quebec and Ontario, where they have their own provincial labs?
Mr. Murray: On a point of clarification first, I have a standing offer agreement with the RCMP.
The Chair: That is not a contract?
Mr. Murray: It is not a guaranteed amount of work. We have no contracts with any other organization, police or otherwise. Our work is on a one-off basis. It is in fact repetitive with a number of police agencies, but not on a contractual basis.
The Chair: Thank you.
I will need some help on this. You will have gathered that the missing persons index has been a subject of sustained interest in this study.
Dr. Chahal, you made a compelling case to me that mitochondrial DNA would be a very valuable part of a missing persons index. However, for the Crime Scene Index and the Convicted Offenders Index, I found myself thinking about the concerns that have been raised about familial searching of DNA. The fear is that with small, isolated, minority population communities in particular, which in Canada would notably be small Aboriginal communities, familial searching, which mitochondrial DNA would make me want to do, can lead to racial profiling abuses and possible miscarriages of justice.
Can you talk about those issues a little bit?
Mr. Chahal: You are right, Madam Chair, that familial searches issues will come into place if we use mitochondrial DNA for the crime scene. For the missing persons index, it would not be only the mitochondrial DNA technology; it would be both technologies. A lot of skeletal remains can be tested only with the second technology because the DNA is already degraded. The second technology comes into play in the missing persons index. We will still have the regular DNA technology doing the missing persons, but if the unidentified remain has no nuclear DNA or is degraded, we can use the mitochondrial DNA.
The other issue is that if it is in the crime scene, it will be even more of an issue than familial searches because our nuclear DNA is not as similar. When it comes to mitochondrial DNA, many people will be involved in a particle search. That is one reason no one has used mitochondrial DNA technology for the regular Crime Scene Index. However, it has a great place to start with the Missing Persons Index.
Mr. Murray: I have just a quick comment on a different tangent. Dr. Chahal is the mitochondrial DNA expert, so I will leave the science with him and his comment there.
In the original consultation paper released prior to the establishment of the National DNA Data Bank, there were similar concerns around the use of generated DNA profiles, the sort of scenario about what the mad scientist out there will do with that profile once he gets it. How else could he potentially use it? I know you have had some discussion at the table about related issues like that.
Subject to Dr.Fourney's experience, which is far vaster than mine, I do not know that all of that original concern came to fruition in any way. It was legislated that misuse is a criminal offence. There are other ways that this committee, or whoever is influencing it, can control the use of DNA and ensure that it is used properly and is a valuable investigative tool, potentially in the limited scope that it has, and make a contribution to missing persons and their identification.
The Chair: Did you want to add anything, Mr. Westecott?
Mr. Westecott: No, that covers it.
Senator Wallace: Dr. Murray, you have the standing agreement with the RCMP to provide forensic services.
Mr. Murray: Correct.
Senator Wallace: Over the last few years, has the volume of the work that you provide for the RCMP been increasing? If so, by what magnitude? I am just trying to get a sense of to what extent the private sector is continuing to provide an increased volume of service to the public sector.
Mr. Murray: It was established originally in 2001. There have been three consecutive standing agreements over that period of time. We are currently in the third. The volume increased over time until recently. The RCMP has come upon the ability to at least now take a look at their capacity and potentially put some automation in place to help them. We have had a recent downturn in the amount of work that we receive from them. I hope it is temporary. We have had some very important discussions with them about that. Going forward, I know that we value our relationship with each other. Subject to their review of their current operations and their look at their own efficiencies, we will continue this relationship going forward.
Senator Wallace: I just want to make sure I understand this clearly. Are you doing work for the provincial labs as well, in particular the Quebec labs?
Mr. Murray: I am not doing any work for the Quebec lab. I am not doing any work for the Ontario lab. In select instances, I do work for police forces, not in Quebec at this time, but for police forces that would be located in the province of Ontario. Again, it is not contractual in any way.
Senator Wallace: Is there any particular reason why you would not be doing work for those two provincial labs? We heard evidence that there seems to be a significant backlog of work at those labs, for example because of the coming into force of Bill C-13 and Bill C-18.
Mr. Murray: I think the preference of the Centre of Forensic Sciences and management at the Centre of Forensic Sciences is to keep it inside and control the work being done in that respect. That thinking was different at the RCMP, and it has been for the last nine years. I am not as much in tune with the thinking in the Quebec laboratory at this point in time. I think that is the answer to your question. The RCMP has been more proactive in seeking or looking at the potential for help from the private sector.
The Chair: Senator Carignan has another question, but this will be the last because we are at the end of the meeting.
[Translation]
Senator Carignan: These questions arise from your testimony. You talked about confidentiality agreements and encryption to secure the transfer of data. Do you also issue accreditations to, and conduct background checks on the staff who do the testing and have access to the premises. I am also referring to caretakers, for example, who could have access to various laboratories in the company. Who handles the DNA and drafts the contracts for the government?
[English]
Mr. Murray: I will let Mr. Westecott speak to the encryption issue.
Mr. Westecott: Certainly for the encryption, yes, you are right. We have a system in place where if there is any need to send data, for example, to the RCMP, such as a DNA profile for review, we do encrypt it when we send it to them so that only the appropriate people within the RCMP can review that and open it. That does exist.
[Translation]
Senator Carignan: I do not want you to disclose any financial information, but, since the companies are listed on the stock exchange and do business with public companies, you must have price lists that are accessible to the public. Is it possible to obtain the prices paid by the RCMP for an average cost per sample for each type of test? We have the cost breakdown from provincial and federal labs; that will allow us to compare the advantages of the private sector with the public sector.
[English]
Mr. Murray: Just as a point of clarification, Maxxam Analytics is not a publicly traded company, so I would like to seek permission in terms of disclosing revenue information, but I will try to answer your question in a couple of different respects.
With respect to the work that we do for police agencies directly, and I will come back to the RCMP in a second, in the way that the data or the samples come to us and the control that they execute on financial restraint and the help that we try to provide them with respect to the samples that they should have analyzed or the prioritization around that analysis, 70 per cent of the work that we do for police agencies, outside of the work that comes from the RCMP, ends in an invoice that is $2,000 or less. Typically, they tend to be a smaller number of items, maybe one or two, as they look directly under financial restraint at those things that are very probative in their particular cases.
In terms of a price list that we provide to clients, it is a long, two-page document that depends upon the type of analysis that the client would like to have done, whether they are doing a simple comparison sample that is a buccal swab of someone's mouth or a bed sheet from a hotel that could potentially have 20 different semen stains on it and require hours of work. There is a broad range of things you can envision in terms of doing that testing.
With respect to the RCMP, I am not sure they would want us to share that information, but I will try to provide an answer. Originally when we started working with the RCMP, our agreement was payment on a case-by-case basis. It has since transitioned to payment on a per-item basis, and that is the way we work our financial agreement with the RCMP.
The Chair: Dr. Chahal, I think you wanted to comment on Senator Carignan's earlier question.
Mr. Chahal: There was a comment on the cleaning staff. In our lab, the analysts or the technologists actually clean the lab portion, so nobody can go into that area. That is possible for us now because it is a small facility. That is how we handle it at this stage. The people who are actually analyzing the samples are actually cleaning the lab too. Only the office space is cleaned by the other outside professionals.
On the second question regarding the price list, again, I am in the same situation. If you call our lab today, the people will pick up the phone and tell you all the prices, but in terms of formally releasing it to you, I will have to discuss that with my boss. If it can be released, then we can send the price list along with the response we will have to your other document.
The Chair: The document we will be giving you actually makes some reference to cost, so if you could include any comments that you can make within your understandable commercial and competitive constraints, it would be very helpful to us. Any material or information you can give us will be useful.
Thank you again. This has been extremely interesting and very helpful to us.
Colleagues, our next meeting will be tomorrow at 10:30 in the morning in this room. For the first portion of that hearing, we shall hear from representatives of the Department of Justice Canada and Public Safety Canada to provide an overview of the federal-provincial working group on a potential missing persons index.
[Translation]
Second, we are going to continue in camera for our first preliminary discussion of a draft report.
(The committee adjourned)