Public Safety Committee on April 24th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to call this meeting to order.

This is the 39th meeting of the Standing Committee on Public Safety and National Security. Today we are dealing with Bill C-279, An Act to amend the DNA Identification Act (establishment of indexes).

We'd like to welcome our witnesses to the committee. We have Ms. Karen Sallows, the director of research and evaluation and strategic coordinator for the Department of Public Safety; Mr. Ronald Fourney, from the Royal Canadian Mounted Police; and Mr. Greg Yost, from the Department of Justice. Welcome to you all.

You are all welcome to make opening remarks.

My information is that Ms. Sallows is prepared to begin. Please go ahead.

[Karen Sallows, Director, Strategic Coordinator, Research and Evaluation Division, Department of Public Safety]

Thank you, Mr. Chairman.

Hello. I am the Director of the Strategic Coordination, Research and Evaluation Division at Public Safety Canada. I am the one in the department in charge of the Missing Persons Index file, the MPI. I appear before you as such.

I would like to introduce two of my colleagues who have been working on this file for several years. There is, first of all, Mr. Ronald Fourney, Director of National Services and Research at Forensic Science and Identification Services in the Royal Canadian Mounted Police, and Mr. Greg Yost, Counsel at the Criminal Law Policy Section in the Department of Justice. We will be pleased to answer your questions on this subject.

However, I would like to start with a presentation outlining the context of the Missing Persons Index initiative and its progress.

Most view a national MPI as creating the capability to allow the DNA profile of a missing person or close biological relative to be compared to the DNA profiles derived from found unidentified human remains from jurisdictions across Canada. Coroners and police in Canada can use many other forensic and investigative tools, including a specialized index on CPIC, the national computer system used by all police. Local authorities sometimes do use DNA technology locally for identification or to assist in missing persons cases, but there is no centralized or standard way for DNA-based comparisons to be made across jurisdictions and no common approach by authorities.

As you may know, the possibility of establishing a missing persons index was raised briefly in 1994 and again in 1996 as part of public consultations related to what is now the DNA Identification Act, for which the Minister of Public Safety is responsible. More recently, Judy Peterson of British Columbia--whose daughter, Lindsey, has been missing for many years--proposed an MPI in response to the 2002 Department of Justice public consultations on the operation of the DNA data bank legislation, and of course there have been previous private members' bills on the subject.

In the fall of 2003, the federal, provincial and territorial ministers responsible for Justice ordered an FPT working group on this Missing Persons Index to be set up. They also asked officials to review issues raised by the establishment of a national index primarily for humanitarian reasons.

I chair the FPT working group on the Missing Persons Index but I am here as a federal public servant. I will provide an overview of the work undertaken by the group over the last several years and sum up the work accomplished and the anticipated timelines. However, since a large amount of information was provided on a confidential basis during the discussions in the working group, I am not in a position to divulge the individual positions of the various jurisdictions at this stage.

The mandate of the FPT working group is to assess matters related to the extent of the Index as well as privacy issues, legal, operational and financial aspects, and to undertake public consultations, to recommend potential models, and to provide support to the ministers and deputy ministers responsible for Justice with regard to setting up an MPI and related decisions.

The public consultation was completed in summer 2005. There were 150 respondents from the general public, police associations, several police services, provincial governments, missing persons organizations, and some bar associations. Detailed results from the consultation are available for the standing committee's examination. But in a nutshell, the results indicated strong support for a national MPI managed by the RCMP.

Also, as part of the consultation process, the FPT working group discussed the issues and challenges the proposal raises with the Office of the Privacy Commissioner, the national DNA data bank advisory committee, Mr. Gary Lunn, and Mrs. Peterson.

I should note that letters of support from concerned citizens who support the creation of a national MPI are received on an ongoing basis by the Department of Public Safety. This remains an issue that is close to the hearts of many Canadians, especially those who are in the unfortunate situation of knowing someone who is missing.

In November 2005, following the consultation results, FPT ministers confirmed their commitment to develop options. They directed officials to conduct detailed work on the cost, privacy, and legal implications. An overarching principle in developing an MPI model was to do no harm to the existing criminal law regime.

Three subcommittees were formed.

The missing persons definition subcommittee reviewed the resources and police procedures that already exist and focused on what guidelines would be required to ensure the most effective management of missing persons cases when these profiles were included in a national MPI.

The legal, administrative, and privacy issues subcommittee focused its research on analyzing the various legal issues involved in an MPI. These included issues such as the implications of cross-matching the MPI with the national DNA data bank's criminal indexes; informed consent; legislative jurisdiction; legal guarantees relating to analysis, retention, use, and destruction of biological samples and DNA profiles; and so on. Mr. Yost co-chaired that group.

The cost and funding formula subcommittee looked at factors that would affect costs and operations. More specifically, the subcommittee assessed the operational procedures you would need to put in place to provide law enforcement officials with access to a national MPI service. It also looked at how this would work in conjunction with existing procedures. The RCMP and Dr. Fourney have been very helpful with this work.

The FPT working group has been active in addressing and resolving a number of issues, many of which have arisen in the debates on Bill C-279. The discussions have coalesced around a number of elements. A national system operated by the RCMP as part of national police services and established largely by the federal government--this is similar to the national DNA data bank--would have the same advantage of having both high numbers of profiles and geographic impact. Provinces and territories could participate on a voluntary basis. In other words, they would be able to choose to gather DNA samples and upload the profiles according to established common criteria, for example, after exhausting other investigative or identification methods.

A missing person could be broadly defined in any legislation, but participants would use regulations and agreed upon guidelines to allow for local flexibility and best common practices.

The MPI would most likely have three separate indexes containing DNA profiles that could be cross-matched among themselves and potentially with existing criminal DNA indexes. The first of these would be human remains from unidentified human remains. The second would be personal effects of missing persons, voluntarily supplied, but using guidelines and verification practices. Third would be relatives of missing persons, voluntarily supplied, with measures to ensure active and informed consent.

Any advisory or oversight body would need to recognize differentiated federal, provincial, and territorial jurisdiction and roles.

If coroners identify human remains through a missing persons index, this finding could be used to establish death for provincial and territorial purposes and would deal with related issues, such as inheritance, insurance, and so on.

An assessment would need to be made of corresponding legislative changes respecting provincial and territorial police and coroner legislation that may be needed.

The working group has made significant progress with regard to jurisdictional issues and consent issues. This keys on both the consent given by any individual involved in a missing persons case and the jurisdictional responsibilities exercised by the originating province or territory. Again, almost all missing persons cases originate through a report to police or when found human remains are given into the control of a provincial or territorial coroner.

It is hoped that recommendations can be made for a legal framework for a national MPI that is flexible enough to deal with these important concerns, which have direct relevance to the prospect of cross-matching the MPI indexes with the existing criminal law indexes. Through informed consent, individuals could be able to control cross-checking of their profiles, provided for MPI purposes, with any of the existing criminal indexes in the national DNA data bank. The originating jurisdiction could also determine the degree of cross-matching it would permit.

Let me quickly note that there is other FPT work under way respecting missing women in particular. Established in February 2006, the mandate of the FPT missing women's working group is to consider issues associated with the effective identification, investigation, and prosecution of cases involving serial killers who target persons living a high-risk lifestyle, including but not limited to the sex trade. They are looking at strategies to protect persons who have a high likelihood of being victimized by these predators. The results of the working group will be in the form of recommendations to FPT deputy ministers responsible for justice. We liaise closely with this group where the potential use of DNA arises in discussions.

A word perhaps on the scale of the situation for missing persons in Canada. As I believe you may know, there are currently between 500 and 600 sets of unidentified human remains in Canada. While there are approximately 100,000 missing persons reports made to police each year, most cases are resolved quickly. For example, it is estimated that approximately 95% of missing persons are located, or the case is otherwise resolved, within 30 days. Approximately 6,000 ongoing missing persons cases are recorded on CPIC, and each year about 420 cases of people missing at least one year are added to this number. Therefore, we know there is a need to build a system that can deal with ongoing cases and with the existing historical group of 6,000 cases.

I should note that the indications are that the raw numbers of actual hits or matches from any MPI may be very low, especially in comparison to the number of matches we're getting for the national DNA data bank. As well, experience from the United States indicates the investigative value to law enforcement MPI matches may be somewhat smaller than is often assumed. However, in the humanitarian sense, any match to human remains or any help in advancing an MPI case is of great value to the family concerned and can assist law enforcement officials and coroners who are working with these families.

California is probably the best example in that its population is close to that of Canada. The California missing persons DNA program has resulted in very few cold hits in which unidentified remains were linked directly to a profile uploaded to the central system. The majority of other hits in the California system, which assists in the identification of about 71 unidentified persons, were what is called “warm identifications”, where DNA was used to confirm what was already suspected. Sixteen of the warm identifications were classified as homicides, 30 were unknown undetermined circumstances--many could be homicides--and 24 of the remaining identifications died of natural causes, suicide, vehicle accidents, etc.

In general terms, this endeavour would be similar to building the national DNA data bank. While the science and experience exists already, there are costs for development and implementation and a need to ensure the participation of the provinces and territories in using similar processes and techniques to conduct the DNA analysis and ensure privacy and security is protected. With this in mind, the working group has intensified its work on an operational model in costing and is trying to work toward final cost estimates to be part of the final presentation to FPT ministers.

I can illustrate for you some of the factors that will determine overall costs. Three of the major cost factors are related to the minimum number of days that could elapse after a person has been reported missing before DNA samples are collected and sent for analysis; the scientific process or processes selected to analyze DNA samples; and which forensic laboratory or laboratories to use, whether government run or private labs or a combination of both.

In March 2007, a business process mapping exercise was completed, which has produced a proposed structure and an operational model, identified jurisdictional responsibilities and coordination of operations between agencies, and provided information that will lead to a more precise cost model to assist in determining how to implement and run this initiative. These results in this timeline are consistent with the direction and timelines given to the working group by FPT deputy ministers at their January 2007 meeting in Toronto. The working group plans to present its findings to the FPT associate deputy minister committee on policing issues in Calgary on May 23, 2007, and make a final report to deputy ministers in June 2007 in Yellowknife. These deputy ministers would consider the report and its specific recommendations that would be presented to ministers at their fall 2007 meeting.

Again, while I cannot speak for the views of provincial and territorial partners, I can tell the committee that there has been very good participation, cooperation, and goodwill from jurisdictions throughout the process. There are considerable policy challenges and choices, but again, there is considerable goodwill and momentum.

Thank you. We'd be pleased to answer your questions.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much. We'll go to questions in a minute.

You said there are very good reasons for the jurisdictional concerns. Could you give this committee some idea of what those concerns are? And you said at the end that you've been talking to provinces and territories. What's an example of a concern and how it would affect this issue?

Mr. Yost.

[Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice Canada]

The fundamental issue being raised is whether the DNA MPI is something that flows out of provincial responsibility. It's coroners in the provinces, their health systems, and things like this that identify the debt. The police are responsible for the administration of justice, so even a normal police investigation would normally be the jurisdiction of the provinces. The federal law powers...there's always spending power, and of course there's the criminal law power. To the extent that the DNA MPI is used for law enforcement purposes--an adjunct to our criminal power--then it becomes something like CPIC, where the national service could be set up. Provinces are not interested in having the federal government tell them how their coroners should handle investigations of missing persons and stuff like that.

[The Chair, Conservative, Garry Breitkreuz]

Okay.

By the way, does anybody else have any opening remarks before we go to questions? None? Okay.

For the first seven-minute round, Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

And thank you, Ms. Sallows, Mr. Fourney, and Mr. Yost. I'm glad to hear that this is moving. I gather it is somewhat complicated, and I understand.

In terms of the jurisdiction, is it not fairly well established that in order for this to actually be implemented, the provinces have to play a key role? Is there still debate around that point? Have the jurisdictional issues been squared away in terms of who has responsibility for what?

[Greg Yost]

We've done a final report, which will go to the main committee, and through it to the deputies, in which we discuss the jurisdictional issues. I think it would be fair to say that as long as the provinces can decide the extent to which they want to participate, then we are not treading on their jurisdiction, and we could establish federal legislation to facilitate the interchange by the provinces, etc. With the national DNA data bank, we do not force the provinces to upload crime scene index profiles. It's something they do because the service could be very useful to their police. So we'd be talking about a service at the federal level that could be of benefit to their police, and their police could decide when they wanted to access it, etc.

Karen mentioned that the jurisdictions would decide to what extent they want to participate and whether they would place restrictions on information the residents of their provinces and their police forces would be allowed to upload.

[Roy Cullen, Liberal, Etobicoke North, ON]

Good. From what you're saying, it sounds like there's a lot of goodwill to work through this and make it happen in some respect.

I had a couple of more detailed questions. I remember being previously involved in this with Mr. Lunn and the department. But just to give me a gauge as to how you're working through some of these issues, I'll give you a couple of concrete examples and maybe you could tell me where the current thinking is. There are two examples that have struck me as not necessarily problematic but challenging. One is where young people will leave home voluntarily and then disappear. What rights do they have, in a sense, if their location is discovered? What responsibilities, obligations, rights, do various parties have if this person has actually left home voluntarily and doesn't want to be identified?

The second example is if you have a missing person, they're on the index, and their DNA is discovered at a crime scene, for example. They might in fact be a suspect. Tell me where the thinking is on that. I may have picked bad examples, but they stuck in my memory as being issues that needed to be worked through somewhat carefully.

[Greg Yost]

I assure you that those are the kinds of issues that we have dealt with.

The question of the person who doesn't want to be identified is one that is an operational issue, if I can put it that way. We always think of this in terms of Judy Peterson's missing child, a young child, and obviously the parents have a major interest. One of the problems is that an awful lot of missing persons reports are of a different nature entirely. Probably the biggest example is Project KARE, which you have heard of, where they gather the DNA from the sex trade workers. They actually wouldn't fit into Bill C-279. The police are not a relative so they have no right to upload it, and that's one of the issues, if it's to be a useful tool for the police, that we have to deal with.

My understanding is that in other jurisdictions that have these the police protocols have.... You find a person three years later who's disappeared at age 16 and you ask, why did you leave? There may be allegations of abuse. There can be all kinds of things that go in a completely different direction. The normal thing is that an adult is not going to be forcefully, if I can put it that way, identified to the person who reported them.

Those are difficult issues that would require police protocols. The operational side was dealing with that more than the legal side. We were aware of that issue.

The one that's probably bothered us the most is the privacy and charter implications surrounding the person. It's been uploaded in a normal way and sometime later it's a case of--I don't know if we can call it this--good news, bad news. We have good news: your child is alive. We have bad news: we think your child is involved as a killer out in Kingston, or something like that. That would be difficult.

The view of--I'll say this--the federal Department of Justice, because some of the provinces are not quite as convinced as we are, is that if the police have obtained information in an appropriate manner, and they would have done this in accordance with the legislation that's provided to them, and if this leads them to something else that they're entitled to follow--if I can use an analogy, the parents show up with a picture of the child, and for whatever reason it's recognized as the picture taken off a closed-circuit camera while a robbery was under way--the police would have, we believe, the right to follow that up. But it's very important that you inform the person who's uploading it and that this be the right person who has some genuine interest in it, that there is this possibility, that it could happen, and you ask, “Do you want us to check the crime scene index or not?” If they say no, you could cut it out.

Ron knows the way these things are operated in other jurisdictions because he deals with them all the time. But I understand that this kind of “fill out the form with which one you want checked” is what's used in other countries.

[Dr. Ronald M. Fourney, Director, National Services and Research, Royal Canadian Mounted Police]

I should add to that perhaps. What distinguishes this index as different from other indices is the humanitarian component and of course the voluntary nature. It's so important to have the consent properly established at the beginning. The training and the collection of those samples are part and parcel. It's very similar to, for instance, a mass disaster.

We were involved with the identification of the victims of Swissair. We also had to develop a very sound consent form enabling us to go forward and make any identifications, but at the same time, the people who were providing the samples to us were very comfortable in what we were doing and what we should not be doing. What distinguishes this index is...it's like a long-term mass disaster. You have a lot of missing people over a period of time.

My counterparts, for instance, in the United States have faced similar situations, and it's interesting to look at the various states involved. For instance, some states are very concerned about the privacy and security, as they should be, of their citizens. On the other hand, I would say that they also balance that with the prospect of making identification. So, for instance, in Florida, my colleagues there have designed a consent form that establishes what can or cannot be searched based on the permission of those individuals providing the sample up front. It would very much be a case of establishing the trust of the individuals in trying to find your missing loved one, but at the same time following the rules that are in place within that consent form.

So part and parcel of this whole process will be establishing the rights and privileges and respecting those at the very front end, and we hope a proper consent form will do so.

[The Chair, Conservative, Garry Breitkreuz]

Thank you. Your time is up.

Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Has this issue been submitted to the Uniform Law Conference of Canada that meets every summer? It usually brings together the Justice and Public Security deputy ministers.

[Greg Yost]

To my knowledge, this issue has not been discussed there. I have been working on this file since February 2005. Perhaps there was some resolution previous to that date and that I am not aware of. I have never been asked to comment upon any resolution coming from that Conference. That would be the normal way for me to find out that something is going on.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

First of all, I am a sovereigntist, but I am absolutely convinced that it would be a good thing to have such a bank, including for missing persons, without there being any criminal activity. If there were criminal activity, this would in any event fall under federal jurisdiction, would it not?

[Greg Yost]

Yes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

The problem therefore flows from the introduction of this missing persons data bank where there is no criminal activity, and this is where this would come under the jurisdiction of the provinces, if I understand correctly. Am I right in saying that?

[Greg Yost]

If a province wished to establish a provincial bank with human remains and the DNA of any of its residents having filed a report, then that would be its business entirely; that would not at all involve the federal government. The problem is due to the fact that we want to do something nationally that will cover that in part, while at the same time helping solve investigations that could entail a criminal aspect. It is the second part that clearly falls under federal jurisdiction.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Excuse me?

[Greg Yost]

Our jurisdiction is over the second part. As for the first part, in other words the human remains that might be found, the coroner who would be put in charge of the file and the reports of missing persons, that is much more the jurisdiction of the provinces.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Yes, but is it your impression that there are provinces that are resisting the idea of participating in this type of data bank?

[Greg Yost]

I do not believe that there are any provinces that are resisting the idea. Some provinces are of the belief that if we want to establish this, they will have to change their legislation, set up their own procedures, etc. Our legislation should be flexible enough to allow provinces to establish their own rules. There is tremendous good will out there. The first problem is one of jurisdiction. The othe problem is the DNA.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

The English name of the Conférence pour l'harmonisation des lois is “Uniform Law Conference of Canada“. Obviously, we did not like the word “uniform“ in French, because that is not what we want to see. That is why we opted for “harmonization“.

It seems to me that this is the typical case for which this Conference was created, in other words, a situation for which it would be beneficial to have a common stance throughout Canada and a common ground in order that, first of all, there be consensus on the aims and, secondly, that the legislation be harmonized.

I do not understand why the matter was not placed before this Conference. My impression is that if it were, unless a province was really opposed to the idea underlying this project, the whole matter would be resolved within two years, one year to reach some consensus, and there are always deputy ministerial meetings between conferences, and the following year to agree on the laws that could be put in place in the 10 provinces of Canada and the territories.

[Greg Yost]

I would say that that is an interesting suggestion, but the directive we received from the deputy ministers was to go ahead with our working group and to make our recommendations. If, when they receive our report, which should come in a few months — we are almost there —, they decide that it would be a good idea to submit our report to the Conference in order for there to be a discussion at that level, then that would be possible. I am not at all opposed to that idea.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

We could perhaps make the suggestion ourselves to the deputy minister, but it would not be a bad idea for you to take the initiative. Deputy Minister Bouchard has been deputy minister for some time in Quebec, and I believe he would be pleased to pilot this file, especially if you told him that I agree, that it is a good project and that it should be carried out.

I know that he has participated in this Conference for having attended it with him over many years.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Comartin, please.