Law Times

Law Times • July 22, 2013 Page 11 FOCUS Should Canada allow DNA upon arrest? Lawyers concerned at calls for new investigative powers BY CHARLOTTE SANTRY Law Times R enewed calls for Canada to permit DNA samples upon arrest rather than conviction are prompting grave warnings from criminal lawyers. The debate has reignited after the U.S. Supreme Court ruled last month that the policy didn't violate the Fourth Amendment of the U.S. Constitution. The 5-4 decision sanctioned what was already a widespread practice in many states and is legal in Britain. However, under Canada's Criminal Code, authorities can't order DNA samples until the court has convicted a criminal of a serious crime such as murder or certain sexual offences. Police associations have long lobbied for samples at the time of arrest, arguing that allowing them reduces the risk of criminals going undetected while they're on bail awaiting trial for other offences. Their warnings haven't yet resulted in changes at federal level, although the government did extend the scope of the legislation in 2011 by requiring mandatory DNA samples from convicted sex offenders. But publicity around the U.S. case seems to have given hope to police figures who want Canada to follow suit. Alberta Federation of Police Associations president Paul Wozney says taking someone's DNA at the time of arrest would give police a "head start" on crimes that offenders tend to carry out multiple times, such as breaking and entering. "Typically in Canada, it's about a two-year window before things get to trial," he says. "It's not about making it easier for law enforcement. It would create more work. It's about public safety." It's "no secret" that Canada often follows the U.S. line on many justice issues, he adds. Wozney, who took on his role in May 2013, plans to raise the issue of DNA sampling at a national meeting of police associations in the fall as well as with MPs and senators. "The momentum at this point seems to be very high because of the recent U.S. split decision," says Enzo Rondinelli, a Toronto defence lawyer and a member of the adjunct faculty at Osgoode Hall Law School. However, he opposes such a move, saying it would clearly breach s. 7 of the Charter of Rights and Freedoms. He adds: "A lot of people get arrested and that's a lot of samples they're taking from individuals who haven't had their day in court let alone been convicted of anything." There's evidence to suggest that Britain's more liberal DNA regime has led to police routinely arresting people in order to harvest a rapidly growing national DNA database. A 2009 report by a government advisory body also suggested that three-quarters of young black males were on the British database as a result of racial profiling. Rondinelli doesn't believe Canada would see an increase in arrests because there are already loopholes in the rules allowing police to gather DNA evidence in some situations. Police can obtain warrants to force people suspected of certain crimes to provide a DNA sample, he notes. This requires police to prove they have good cause to suspect the person. In order to do so, they can seize DNA samples, for example, from items thrown in the trash. Asked whether allowing DNA sampling on arrest would simply make the process more transparent, Rondinelli replies: "I don't know if that alleviates the concern over what they're doing with the sample." Toronto-based criminal lawyer Sam Goldstein agrees there are questions over how authorities would handle the samples, particularly if the court finds a suspect not guilty. "The police take fingerprints and a photograph of you if you're charged with an offence," he says. "But those photographs and fingerprints are often kept even if you're found not guilty because each police force in Canada has its own policy on when to destroy such records. "Most probably, the police would retain your DNA sample even if you were found not guilty." DNA data is far more sensitive than the information contained in fingerprints or photos because it reveals personal details such as health issues, he adds. In a 2008 case, R. v. Debidin, Goldstein asked the Ontario Court of Appeal to refuse an order for his client, a convicted sexual offender, to provide a DNA sample. However, the court ruled that the potential benefits of solving crime outweighed Sean Debidin's right to privacy. Testing for DNA after conviction can be justified, Goldstein says, because "the DNA can be used both to exclude a known sexual offender as well as to identify him or her." But this rationale falls flat at the charge stage where the person has a presumption of innocence and remains so until proven index made up of DNA otherwise, he states. from convicted criminals Rondinelli also highand the crime scene index lights the "very strong" comprising DNA from comments by dissentunsolved crimes. ing U.S. Supreme Court "That's not a small adJustice Antonin Scaministrative task," he says. lia, a judge normally "That requires a conknown for his conservasiderable amount of ortive views whom people ganization and would might have expected to be an amendment to the sympathize with law en[legislation]. It's unlikely forcers. Scalia took issue that the funding would be with the suggestion that available for it." DNA samples were akin However, Wozney says to fingerprints and that he has "a lot of faith in the police would use them Conservative government." to confirm the identity of "They platformed on people they had arrested. a law-and-order agenda He wrote: "The court's and have certainly held up assertion that DNA is their side of the bargain being taken, not to solve thus far," he says. crimes, but to identify A Department of Justhose in the state's cus- Allowing DNA samples upon arrest would be administratively challenging, says David Rose. tice spokeswoman said: tody, taxes the credulity of "Police associations are the credulous." Here in Canada, legislative changes suffer from one of the stakeholder groups with whom we regua lack of appetite among Canadian politicians and larly consult. We always take their suggestions very members of the public for a large DNA data bank seriously as we come forward with new justice/ public safety initiatives." that could be costly to run and set up. However, when it comes to the proposal to take According to David Rose, a criminal defence lawyer at Neuberger Rose LLP, the data bank would DNA samples at the time of arrest, there are "curneed to be separate from the convicted offender rently no such plans in the works," she noted. LT RELIABLE GUIDANCE ON THE RULES OF COURT NEW EDITION ONTARIO ANNUAL PRACTICE 2013-2014 THE LATE HONOURABLE JUSTICE JAMES J. CARTHY, W.A. DERRY MILLAR, AND JEFF G. COWAN Includes print, CD-ROM and mobile version Gain a solid understanding of Ontario's civil and administrative procedural law with the Ontario Annual Practice 2013-2014. This one-stop resource gives you everything you need for your civil litigation practice, including the most relevant case law personally selected and summarized by leading experts. 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