Public Safety Committee on Feb. 24th, 2009

[The Chair, Conservative, Garry Breitkreuz]

Mr. Bird.

[David Bird]

Mr. Chairman, could I add something? This follows up with the question by Mr. Norlock as well. I think this committee's recommendations are going to be important to the way we proceed forward with any potential bills to amend the legislation. I believe it's been an issue that all of these issues have been parked pending the completion of the five-year review with respect to the government's policies to be developed respecting many of these issues. And I would also point out that the Supreme Court of Canada, in the case of Rodgers, had commented in its dicta that they thought it a good idea to have judicial oversight on the issuance of convicted offenders orders, but that it wasn't necessarily legally required given the privacy protections that had been instituted around DNA samples in the DNA data bank.

So it is now my opinion, at least, that the way is open for us to consider amendments to the legislation to allow it to be considered to be taken at time of arrest or charge, depending on which way we have to go with fingerprints as well, and that potential as there, but that debate could now be put forward to Parliament for further consideration.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. MacKenzie, and then we'll go to the Bloc Québécois.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair, and thank you to the panel.

Dr. Fourney, I wonder if you could answer the first part and perhaps Mr. Bird or Mr. Yost could answer the second part of my question.

The first part would be so that people understand what it means to have a sample for your purposes, a sample taken from an individual. I'm wondering if you could explain to everybody here what that really means. Is it taking of saliva, blood, whatever?

[Dr. Ronald M. Fourney]

There's provision within the law to take either a hair sample, a saliva sample, or a blood sample. This was discussed extensively over a long period of time. In fact, just as we were designing the kit that we currently use today, we had the unfortunate circumstance of Swissair 111 going down off the coast of Nova Scotia. The test kits that we were just evaluating were put into service at that time throughout the world to collect controlled samples for identification of those victims through relatives. At that point I guess we did a pretty good job, because every single kit came back, and we got a perfect result. So we knew we had a good idea of what to take.

The principal sample is a blood sample, which is essentially a finger prick onto a special type of card. The card itself is kind of our secret weapon. It looks like a normal piece of paper, but it was developed in the outback of Australia. They put chemicals on it to preserve the DNA so you do not have to refrigerate this, and as a result it also prevents viral and various agents like hepatitis and bacteria from impregnating the DNA and breaking it down, so it's a natural preservation material that you can store at room temperature. It also became a very nice way of collecting the sample with a small finger prick. Of all our samples, 98.5% are blood samples.

Buccal swabs, which are collected by putting a delightful-tasting piece of styrofoam in your mouth and then putting it onto the same FTA-type card or this type of paper collection card, account for only 1.3% of the samples in there. Samples are technically blood. There is discretion to take a buccal sample if you need to, or if there's a concern over an individual with regard to a disease or a hemophiliac situation. I can tell you about problems we've had with the buccal swabs, as interesting as that may sound. We've sometimes had mixtures show up in the actual DNA profile, indicating two individuals. You could imagine seeing DNA for two individuals on a card and wondering what the heck's going on here. As a scientist, you immediately think something's wrong. As it turned out, the people that we collected these samples from had mixed saliva. They had had a donation of saliva from another individual and had deliberately done this to try to confuse us in the national data bank, so the next time we went back we would take another type of sample. It would be hard to do that with blood unless you had a blood transfusion right before we took a sample. But blood tends to be the one we use.

It goes on a piece of white card. There's an associated form with that card that has all your personal information. There's a link with a bar code, essentially like a supermarket code on it, that ties this personal information, including fingerprints, to the donor card. That has no direct identification of the individual on it, but the name of the police officer who took the sample, as well as where he or she is from, would be on the card. It comes into the national data bank. We have a kit reception area. Those people are trained to know fingerprints, so they match up the personal information on a separate sheet, called a 3801, with our card to make sure there have been no mix-ups, or what have you, that they hadn't collected two individuals at the same time and mixed up the cards. So it's a quality assurance procedure. At that point, the cards themselves, which are anonymous, and have essentially a special number that we encode in them, go through the entire database. They are uploaded, and there's no identity attached to them. You just become a number in the national DNA data bank.

We often have people phone up and ask if a specific person is in the data bank. The only way they would know that is by checking the files from CPIC, the Canadian Police Information Centre, to see if there's a flag there that says a sample has been collected for that individual. The form itself, with all the personal information, goes to a completely different registry where it's entered and verified and the criminal history is checked out. At that point there's a clear, distinct division between the personal information and the genetic or DNA information. So that's essentially how our process works.

[Dave MacKenzie, Conservative, Oxford, ON]

Okay. I just wonder if either Mr. Bird or Mr. Yost would answer. What would it do if the Identification of Criminals Act were amended so that it didn't say that we just take the measurements by the Bertillon system, but we also took a DNA sample? Would that not fit the criteria we're talking about?

[David Bird]

I'm not sure that where the requirements are kept, in which legislation--whether it's the Identification of Criminals Act, the DNA Identification Act, or the Criminal Code--will change the process. In essence I think where it's up to the discretion of the police as to what type of sample to take, they can take blood, buccal, or hair. Hair, I believe, has a 5% error rate, and its use is discouraged, but there are cases when the police at the time should use their discretion to determine whether or not it's appropriate to take blood. There are medical conditions, such as for people who have had blood marrow bone marrow transplants, or there could be a contamination aspect.

[Dave MacKenzie, Conservative, Oxford, ON]

But would that not fit the criteria of individuals from whom we want to collect the samples, more than what type of sample we collect? That would be my question.

[David Bird]

Oh, if the issue is whether we should be collecting from people post-conviction or at time of arrest, then it would be from the Supreme Court of Canada's decision in the Rodgers case. They could make very little distinction between DNA and fingerprints for the purposes of simply revealing identification information, and that's what it's used for. So, in essence, we could treat them both the same.

[Greg Yost]

Strangely enough, the Identification of Criminals Act allows persons to be fingerprinted, photographed, or subjected to such other measurements, processes, and operations having the object of identifying persons as are approved by order of the governor in council. In theory, we could have brought in DNA on arrest by a regulation under the Identification of Criminals Act, but that is not a move we're prepared to do without parliamentary direction.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Monsieur Ménard.

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

Thank you, Mr. Chairman.

I would like to ask a few brief questions necessitating brief answers which I think will be very useful in our deliberations on possible changes that could be made. I should say that I've taken good note of Justice Cory's very specific recommendations.

It would be difficult for you to explain the method you use for codification. However, I would imagine you could provide us with written material on how this is done which we could look through in our free time, as to whether this process is international in nature and whether it is possible to draw comparisons with other jurisdictions.

The cost for the RCMP of one DNA analysis has already been assessed. Could you tell us how much it costs, on average, for the RCMP to analyze one DNA sample?

[Dr. Ronald M. Fourney]

From the national DNA data bank point of view, I can give you pretty well exact costs. I believe copies of our annual report have probably been provided to the members of the committee. There's always a table included in this with regard to the costing; so for instance, in 2007-08 it was $2.627 million.

Now those costs are direct costs. It doesn't include additional costs such as Mr. Cory and others have mentioned: the security of the building, the maintenance, and everything else that goes on. Those are the bare-bones costs and each year they go up. For instance, in 2006-07 it was $2.6 million, whereas projecting the additional samples for next year, it will be a little bit more. So those costs are readily available.

I think where it may be often confusing is that the national data bank is a prescribed protocol where the samples are essentially controlled. They're controlled from the point of view of the samples collected from an offender in a designated condition, brought in, processed. It's very efficient, the automation works extremely well, and what we've been doing over the last few years is developing the automation technologies that would be potentially useful for crime scene samples.

I think there's ongoing review right now of the costs you requested from our colleagues in Public Safety Canada. So there are actually two reports out in the past. I believe they're in the process of doing a report of that nature, which may be forthcoming, with the cost and also the capacity issue of what the future might be.

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

Do you have information on how much it costs, on average, per investigation? I think it was $1,800 a few years ago. Is that still the case or is it more expensive?

[Peter Cory]

Per sample. How much does it cost to...?

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

If you do not have this information, could you provide it to the committee at a later date?

[Greg Yost]

I'd like to make a comment. The problem is that you can carry out all sorts of analysis on all sorts of things found by the police to try to find DNA without managing to do so or establishing a profile. It is possible to spend a great deal of money without obtaining any result.

We could ask the lab to tell us how many profiles it has obtained for how many crime scenes and how much that cost. However, it is done through Canada's National DNA Data Bank. Dr. Fourney's budget did not increase by 75% although he's analyzing 75% more profiles. There are always going to be some basic costs, for instance to heat the building. Whether you have 1,000, 15,000 or 30,000—

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

I understand. I would now like to deal with another issue.

In 2006, the Minister of Justice allocated funding for a joint study with Public Safety Canada and the RCMP to respond to the concerns and desire of the National DNA Data Bank Advisory Committee to measure the data bank's effectiveness.

Publication of the study findings was scheduled for late summer or early fall 2008. We're now in 2009. Are the findings of that study available? If so, could you table a copy of the report with the committee?

[Greg Yost]

It may seem surprising, but when I read this question, I did not know what study they were referring to. I did not even know that the Department of Justice was researching effectiveness. We have had discussions, but it's not something we've done to date. I cannot speak for Public Safety Canada.

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

Do you have statistics on how many innocent people's DNA has been analyzed? In how many cases was someone exonerated? In how many cases did the evidence obtained through DNA identification lead to convictions?

[The Chair, Conservative, Garry Breitkreuz]

Please give as brief a response as possible.

Thank you.

[Dr. Ronald M. Fourney]

Unfortunately, we can't tell you that information, from the national data bank perspective, because the very safeguards in place for encoding the samples for privacy and security prevent us from actually knowing the individual who may be involved. To be honest, we can't tell you the number of times we've exonerated an individual based on DNA.

I can tell you that we have a quality assurance questionnaire that is provided each year to all our end-users. And we have had a number of occasions where the police have indicated that the data bank has focused an investigation and that in fact who they thought might have been the perpetrator turned out not to be.

There are very few places I know of that have this kind of information.

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

Is this information kept confidential? If not, could we get a compilation of answers to these questions?

[Dr. Ronald M. Fourney]

We'd be happy to provide a copy.

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

Thank you very much.