Law Times

law Times • July 26, 2010 FOCUS PAGE 11 fter 10 years of running the DNA data bank, the use of ge- netic science in the justice sys- tem has finally come up for review. The government passed the DNA Identification Act in 1998 with a plan to review it five years later. In fact, it's taken twice that long for the review to take place. Nevertheless, the result is a report that tackles the serious and con- troversial issues that this inherently in- trusive science raises. On June 29, the Senate standing committee on legal and constitutional affairs recommended a careful expansion of the current system, which it believes is working well. In doing so, it attempt- ed to strike a balance between protect- ing the public and safeguarding privacy. On issuing the report, the committee's chairwoman, Sen. Joan Fraser, said: "The DNA information gathered must be managed in a manner that ensures that the invasion of privacy does not ex- ceed the established security need." There are 22 recommendations in the report. One that has already raised the ire of defence lawyers is the proposal to amend the Criminal Code to allow for automatic collection of DNA sam- ples from individuals convicted of des- ignated offences. Witnesses before the committee complained that the process to obtain a DNA collection order from the court is complex, challenging, and administratively cumbersome. Howev- er, defence lawyers say that the invasion Review of DNA regime sparks controversy A BY JUDY VAN RHIJN For Law Times of privacy, given the genetic information stored in DNA, is unjustified. There are also concerns about the at- titude that DNA test results amount to conclusive proof. Imbalances, degrada- tion, deterioration of samples, and the possibility of contamination at any stage of DNA collection, testing, analysis, and storage — not to mention the possibil- ity of fake specimens planted at the crime scene — can all interfere with the scien- tific side of the process. "Science is not perfect, no matter how you slice it," says Ricardo Federico, a defence lawyer based in Toronto. "Thinking to expand the DNA net is not always the answer." It was a relief to defence counsel that the committee found automatic sampling of individuals in lawful custody charged with indictable offences to be inappropri- ate at this time. It accepted the position put forward by the privacy commissioner that taking samples prior to conviction could infringe privacy and constitutional rights along with the presumption of in- nocence. It also found that a significant administrative problem would result from the storage and tracking of samples that would need to be destroyed if a con- viction didn't result. One recommendation that appears likely to worry privacy advocates is a call for public consultation on whether authorities can use samples to discover personal characteristics or medical in- formation that might be of assistance in identifying suspects. "If it would lead to racial profiling, I'd be strongly against it," says Federico. "The identification of medical conditions is an absolute no. No individual should be subjected to that when it comes to criminal law. I should hope that everyone would agree with that. It has huge privacy implications." Another very controversial area touched on by the report is kinship analysis and familial searching. The committee found that further study is necessary before allowing the use of a close or partial match to narrow the list of suspects. The high-profile arrest of the alleged serial murderer known as the Grim Sleeper in southern Los Ange- les on July 8, which arose from a partial match between a sample from his son and old crime scenes, will no doubt stir the debate even further. Federico is also concerned about the endorsement of the exchange of data bank information internationally for in- vestigating incidents abroad that would constitute indictable offences under Canadian law. "This is the most dan- gerous issue and the one requiring the most analysis," Federico warns. "For ex- ample, there are many questions not yet answered. What is the protocol for ex- changing DNA? How is the decision to be made? Will it require judicial discre- tion? What happens when there's a so- called match? What has Canada done to look at the foreign jurisdictions and see the scientific conditions in those coun- tries? Is there the same level of scrutiny as in Canada? What level of scientific competency is required when it comes to foreign jurisdictions?" Federico cites examples of international blunders in the use of DNA, such as the attempted extradition of a 23-year-old British bartender for the murder of an Italian woman when there was clear evi- dence he had never been to Italy and was conspicuously pulling beers in Britain at the time of the offence. A less controversial proposal is the use of private forensic laboratories. "If it means greater certainty when it comes to science and more efficiency, I applaud it," says Federico. "In this day and age, there are a lot of micro-spots in science. As long as we're the leaders in the world, as we should be, I don't know why the govern- ment would say no to that." But what Federico would like to see is a regulatory body legislated and mandated by the federal or provincial government to oversee the science and the process. "The police should not be the gatekeep- ers for the simple fact that scientists make mistakes," he says. That proposal echoes the recom- mendation from a House of Commons review issued in June 2009, as does the suggestion to amend the act to allow ac- cused people and their counsel to obtain information from the data bank for crim- inal defence purposes and accommodate voluntary sampling for exoneration pur- poses. The two committees also agree on providing more resources for the system while prioritizing the creation of missing persons' and unidentified human remains indexes at the National DNA Data Bank and then considering the establishment of a broader victims' index. In response to the report, Justice Canada spokeswoman Carole Sain- don says the government is reviewing the recommendations. LT D&D-2_July26_10.indd 1 www.lawtimesnews.com 7/19/10 2:03:02 PM

• Cover
• Storied Collection
• Busted Bracelets
• Focus On Forensics/Private Investigators