Law Times

PAGE 4 Should Canada adopt time-of-arrest approach to DNA? NEWS A BY MICHAEL McKIERNAN Law Times annual Canadian Symposium on DNA Forensic Evidence, says DNA evidence attracts an extremely high level of public reverence that' it shares them with, according to a Toronto criminal defence lawyer. Ricardo Federico, co-chairman of the "Scientists make mistakes and police make mistakes," says Federico. "It's as simple s not always warranted. as that. Blunders exist and they are likely to continue to exist. I have a grave concern that the manner in which the global exchanges have happened in the past have created blun- ders and I believe in my heart and soul that it should be given greater watch." A 2009 Virginia Law Review paper co-written by Peter Neufeld, a founder of the Innocence Project, examined 156 U.S. cases in which DNA evidence helped overturn wrongful convictions. It found that in several of the cases, invalid DNA evidence actually played a role in the original conviction. One Texas man, Gilbert Alejandro, was series of international DNA blun- ders should have the Canadian government thinking twice about when it collects samples and who involved misleading sta- tistics on mixed DNA samples that appeared to underestimate the chance that someone other than the suspect had contrib- uted to them. Federico also points DNA database with evi- dence found at the scene of the crime. Three weeks into the extradition pro- cess, a second test ruled him out after a watertight alibi placed him at work in Liverpool at the time of the mur- der. In fact, Hamkin said he had never left England and told a local newspaper it had been "the worst three weeks of my life. to a U.K. case from 2003 in which 23-year-old bartender Peter Hamkin became a suspect in a murder in Italy. Italian authorities moved to extradite him after hit- ting a match on the U.K.' s 'I think we're going to see more and more exchanges with other countries and we may see more blunders, too,' says Ricardo Federico. Photo: Robin Kuniski implicated in a sexual assault by what the paper calls the "egregious testimony" of a DNA expert who claimed samples found at the scene could only have come from him. Post-conviction tests later excluded Alejandro and an internal inquiry at the lab found the expert hadn't conducted the tests properly. Two other cases mentioned in the paper 14-year-old national DNA databank. Its two databases contain about 75,000 unidenti- fied samples from unsolved crime scenes and a further 250,000 samples collected by court order from people convicted of certain offences. Countries with agreements in place can send their own crime-scene samples to Canada in order to search for a match. Federico says he' The RCMP in Ottawa maintains Canada's " layer of scrutiny between police and the databank in order to avoid having situations like Hamkin' d like to put an extra "Do we really want the RCMP as the s repeat themselves in Canada. gatekeepers to the world when it comes to the exchange or should we have some sort of judi- cial intervention prior to a DNA profile exiting the country?" asks Federico. David Bird, a retired that fears about inter- national exchanges are overblown. Since 2000, there have been just 900 requests from for- eign police forces while Canada has run its own crime-scene s DNA symposium Matches and exchanges are even more rare, said Bird. "The sky is not falling when it comes to through foreign data- bases on 148 occasions. profiles international exchanges," Bird told an audi- ence at Osgoode Professional Development in downtown Toronto on April 28. In fact, Bird said Canada is playing catch- former counsel with Justice Canada, told this year' May 28, 2012 • Law TiMes Crown to make an application to the court in order to take a sample. Bird said that process has become cumbersome and complicated. "We should be leaping forward and look- ing at the experience that other countries have in their DNA databank," said Bird. "The sky doesn't fall and the wrong people don't go to jail. We need to have an adult discus- sion about safeguards. . . . Can we put proper oversight to ensure that all the concerns about privacy creep, the surveillance society, and all the other bogeymen floating around out there get addressed so we can get on with making a decision on this? The U.S., the U.K., the world is going to time of arrest." In a 2010 report, a Senate committee tasked with reviewing the DNA Identification Act recommended that Canada steer clear of time-of-arrest collection. "If such a legislative change were to be up with other jurisdictions when it comes to DNA collection. Police in Britain and 13 U.S. states take DNA samples from suspects on arrest for certain offences. In Canada, meanwhile, it takes a court order to add samples to the databank after conviction for certain offenc- es. Legislation provides for 36 designated offences where a judge has no discretion and must order the sample taken. A second tier of indictable offences with maximum punishments of five years or more allows the introduced, it seems possible that a court would conclude that sampling upon arrest and charge violated sections 7 and 8 of the Charter, as well as the presumption of inno- cence 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 person were acquitted, report noted. For Vincenzo Rondinelli, a defence law- " the yer with Lafontaine & Associates in Toronto who was also on a panel with Bird, that was a rare bright spot after years of "legisla- tive creep" on DNA collection. "From Day 1, the message has been, 'Don't worry, it' only going to be a certain segment of the offender population where we'll collect,' to today where it' says Rondinelli. s basically almost everyone," LT s Bridging the gap between theory and practice Take your Professional Development to the next level with the CBA Skilled Lawyer Series II Building on the foundation and success of the CBA Skilled Lawyer Series I, the new CBA Skilled Lawyer Series II moves beyond the basics by offering more depth on narrower topics, enhancing the skills and knowl- edge needed to excel in the courtroom and boardroom. • Accredited – all courses are eligible for Mandatory Continuing Professional Development credits and have ethics, professional responsibility and practice management content. • Accessible – the online format allows you to access the courses on your computer, from anywhere, anytime. • Affordable – CBA members receive preferential pricing for individual courses or packages. • Practical and Interactive – the use of case studies, simulated problems and live drafting exercises enables us to deliver practical, experiential training. • Flexible – select a full package of courses or just pick those that are relevant to your practice. Choose the interactivity of a live presentation, or the flexibility of a recorded session. To learn more and to register, visit cba.org/pd/sls INFLUENCE. LEADERSHIP. PROTECTION. Untitled-1 1 www.lawtimesnews.com 11-11-28 9:13 AM

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