Law Times

Page 10 May 26, 2014 • Law TiMes www.lawtimesnews.com FOCUS DNA samples upon arrest a divisive issue BY michael mcKiernan For Law Times anada's DNA collection regime would undergo a "sea change" if the federal government follows through on a suggestion to take samples from suspects on arrest for cer- tain crimes, according to a Toronto civil liberties lawyer. In an interview late last year, federal Justice Minister Peter MacKay said the timing of DNA collection was under con- sideration in discussions about DNA data bank legislation. "Right now, we're limited to taking it on conviction," MacKay told e Globe and Mail. "It could be expanded to take on arrest, like a fingerprint," he said, noting "a genetic fingerprint is no different and could be used in my view as an investigative tool." But Abby Deshman, director of the public safety program at the Canadian Civil Liberties Association, strongly dis- agrees with that comparison. "At first glance, it may not look as though there is much difference between taking an impression of a finger and taking a mouth swab or strand of hair, which are common ways of collecting DNA samples," she says. "But the content is clearly enormously different and, if used incorrectly, a DNA sample can reveal a huge amount about us in a way that fingerprints can't. It's an intensely private material." MacKay's suggestion received imme- diate backing from a number of high- profile policing figures, including RCMP Commissioner Bob Paulson and Calgary Police Chief Rick Hanson, who claimed police would solve more crimes as a re- sult. But Deshman says the price to in- dividual privacy would be too high and predicts a constitutional challenge on the basis of unreasonable search or seizure. "is is something police forces have pushed for and in some countries achieved, so to the extent our police look abroad to see what tools are available, it doesn't surprise me. What is surprising to me is pushing for such a drastic departure from where we are now rather than an incremental expansion. We currently have quite a restrictive regime governing DNA data banks, so this would be a sea change in how we deal with DNA. ere are so many arrests that never result in a charge, let alone a conviction, that it's hard for me to think this would be a desirable or logical direction for our justice system." e RCMP maintains Canada's 16-year-old national DNA data bank in Ottawa. Made up of two databases, it cur- rently contains about 95,000 unidentified samples from unsolved crime scenes plus a further 290,000 samples collected by court order from people convicted of cer- tain offences. According to the data bank's web site, it adds between 500 and 600 new samples every week. Jaki Freeman, a Toronto criminal de- fence lawyer who sits on the executive of the Ontario Bar Association's criminal justice section, says removing the layer of judicial oversight currently present in all DNA collection applications would pose serious problems in any attempt to pro- tect a collection-on-arrest regime from a constitutional challenge. "When you've got a police officer mak- ing the determination as opposed to a judge, that's the scary part to me about this. Intrusions into our civil liberties have been permitted historically because you've got the peace of mind, so to speak, of having judicial oversight. If you take that away, you're in a real constitutional quandary." Parliament has tackled the issue before in a 2010 report by a Senate committee tasked with reviewing the DNA Identification Act. At that time, the committee on legal and constitutional affairs recommended Cana- da steer clear of time-of-arrest collection. "If such a legislative change were to be introduced, it seems possible that a court would conclude that sampling upon ar- rest and charge violated sections 7 and 8 of the Charter, as well as the presumption of innocence guaranteed by section 11(d) of the Charter, particularly if the DNA profile was not destroyed as promptly as possible if the charges were dropped, stayed or reduced, or if the accused per- son were acquitted," reads the report. However, last year, the U.S. Supreme Court went in a different direction when it backed DNA collection in the case of a person arrested but not yet convicted of a serious crime. Many U.S. states authorize DNA collection on arrest, but the deci- sion split the country's top court 5-4. Justice Anthony Kennedy, writing for the majority, backed MacKay's characteriza- tion of DNA samples when he concluded: "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyz- ing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." But in a typically forthright dissent, Justice Antonin Scalia wrote the DNA proposals, "to be sure, have the beneficial effect of solving more crimes." "en again, so would the taking of DNA samples from anyone who flies on an airplane . . . applies for a driver's license, or attends a public school. Perhaps the con- struction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection," Scalia added. "Just because others go down this route doesn't mean we should, too," says Desh- man, who notes that police in Britain have had their powers to collect and store DNA drastically curtailed by the European Court of Human Rights. LT From Crime to Punishment, 8th Edition reviews the foundations of the Canadian criminal law system and examines the entire criminal process from the commission of a crime to conviction and sentencing. The authors cover diverse topics ranging from the basic principles of criminal law to how judges determine the credibility of witnesses in courtroom proceedings. Written in plain language, this classic resource will help practitioners, students and law enforcement professionals develop a deeper understanding of the fundamentals of the criminal legal system. New in this edition The chapter entitled Do you have a Criminal Record? – The Effect of Discharges and Record Suspensions clarifies the law in light of the controversy and confusion surrounding discharges and record suspensions. The chapter entitled Extradition explains what extradition is, why someone is extradited, and how the requesting country proceeds in having a fugitive returned to their territory. New Edition From Crime to Punishment, 8th Edition Joel E. Pink, Q.C. and David C. Perrier, Ph.D. Cultivate a deeper understanding of the Canadian criminal legal system Available risk-free for 30 days Order online: www.carswell.com Call toll-free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986087-65203 $107 Softcover approx. 740 pages April 2014 978-0-7798-6087-6 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. 00220CN-A43566 25 th Anniversary Edition C 'We currently have quite a restrictive regime governing DNA data banks, so this would be a sea change in how we deal with DNA,' says Abby Deshman.

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