In 1994, the BCCLA released a position paper supporting the establishment of the DNA data bank, and the amendment of legislation to allow police to obtain a warrant to collect DNA samples from suspects in serious crimes, to demand DNA from those arrested for serious crimes, and to bank DNA information for legitimate law enforcement purposes. The foundation of the paper was that DNA sampling and profiling is analogous to fingerprint sampling and analysis. That paper can be found at http://www.bccla.org/positions/privacy/94dna.html.
Eight years on, we look at the ways in which DNA profiling is different than taking fingerprints, particularly with reference to privacy concerns.
Ensuring adequate procedures to protect privacy of samples and information obtained under ss.487.051, 487.052, 487.055, 487.091 of the Code, or under ss.196.12, 196.14, 196.15, 196.24 of the National Defence Act, and the use of crime scene samples
At s.487.071, the Code requires that the data resulting from forensic DNA analysis of any samples, and any unused portions of any samples are transmitted to the Commissioner of the RCMP. At s.487.08, the use of the samples taken for the purpose of investigating an unsolved designated offence, and the use of the data obtained from the forensic DNA analysis of those samples, is restricted to that use only. Similarly, the use of samples taken for the convicted offenders index is restricted to forensic DNA analysis or for storage for the purposes of the DNA Identification Act.
The misuse of either samples or data taken for the purposes of the crime scene index (that is, investigating designated offences) is punishable on summary conviction (with a maximum $2000 fine and/or maximum 6 months imprisonment).
The misuse of either samples or data taken for the purposes of the convicted offenders index (that is, for comparison with the samples and data in the crime scene index) is a hybrid offence, and the process is either by way of indictment (with a maximum 2 years imprisonment) or summary conviction.
Our concern is that there is as yet insufficient oversight or the transparency to allow that. The DNA Data Bank Advisory Committee Regulations establish the Advisory Committee at s.2:
An advisory committee is hereby established, to be known as the DNA Data Bank Advisory Committee, consisting of a Chairperson, a Vice-Chairperson, a representative of the Office of the Privacy Commissioner and up to six other members who may include representatives of the police, legal, scientific and academic communities.
However, the mandate of the committee is as vague as can be. The committee is to advise the Commissioner on matters pertaining to the data bank, and to produce an annual report to the Commissioner of the RCMP.
We suggest there needs to be a clearly legislated role for the Privacy Commissioner, with periodic audits of the operation of the data bank, and clear powers to investigate complaints.
The DNA Identification Regulations deal with ensuring the integrity of the samples by prescribing a collection kit and procedures for continuity. There is also direction regarding security of electronic transmission of data; for protection of privacy in the case of international agreements; and the method for destroying samples and information when there is no longer authority for retention, as in the case of a successful conviction appeal.
The danger here is, who is policing the police? How will it ever come to light that DNA samples or profiles have been used inappropriately? What protects us from the incremental steps toward profiling samples for indicators of physical or psychological characteristics? If there are genetic markers for a higher risk of recidivism, are we comfortable with that information going to the Parole Board? There is nothing in the current legislation which would authorise this use, which is technologically only hypothetical at this point. Should science and technology make this possible, we need to ask ourselves, are we ready to go down that road, or do we have the courage not to take that road when it lies before us? Advances in technology always predate legislative change. It is important that we concern ourselves with these questions in advance of science, because the lure of knowledge can be blindingly powerful when it is within our grasp.
In weighing the legitimate concerns for privacy against the benefit to society in solving serious crimes, we have to examine the way in which DNA profiling is different than taking fingerprints. With advances in technology, DNA profiling will become cheaper to use and will be more broadly used. It will also yield more information. We need to carefully consider the consequences of possessing that information, because once we do, it will be difficult, if not impossible, to refrain from using it.
Nothing in legislation guides the appropriate use of crime scene DNA samples. It is not strictly a matter for the data bank, but for the people conducting the forensic investigation of evidence found at a crime scene. The investigators need very clear legislative limits in respect of mining crime scene DNA for information, and the appropriate uses of the data.
At present, the DNA profile is taken from “junk” DNA, that is, that portion of the DNA which has not yet been assigned to any particular characteristic. The science of human genetics is advancing rapidly; as a society we are understandably curious about this information. Are we ready for that promethean moment when meaning is assigned to parts of junk DNA?
What protects us from a DNA profile being mined from already meaningful parts of the DNA, since the original sample is stored and could presumably be profiled again at some point when our attitude toward DNA profiling becomes as blase as our current attitude toward fingerprints. What will we do with that information when we have it? It is not human nature, and certainly not the nature of police investigators to refrain from using information which is plainly there.
The danger is not that an individual person will be identified from a crime scene sample (indeed, that is the goal). The danger is that a partial description might one day be accessible in the DNA. Would a whole class of persons be asked to submit samples of bodily substances for analysis? What will we do if we are able to say that a suspect is a blonde, blue-eyed woman with an increased risk of breast cancer or the gene for Huntington’s chorea? Will we ask all the blonde, blue-eyed women with a family history of Huntington’s to provide samples? Will we tell them that they will develop Huntington’s? How about breast cancer? Baldness? Aortic dissection? Schizophrenia? Psychopathy?
We also suggest that it is reasonable to take steps to guard against corrupt investigation practices. We do not suggest that police practices are commonly corrupt, but unfortunately, our experience is that from time to time the corrupt practices of one individual can be damaging to the public interest in prosecuting serious crime. One suggestion is that a dye or some other chemical marker be added to samples taken for the convicted offenders index, so that they could not be misused as crime scene samples. This seems to be a simple, inexpensive safeguard against an uncommon, but potentially devastating evil.
ISSUE 1: Whether there is a need to amend the current lists of designated offences in s.487.04 of the Criminal Code
(a) Historical sexual offences
We take no position on the inclusion of historical sexual offences in the list of primary designated offences.
(b) Reclassifying existing designated offences and adding new offences
With regard to the classification of offences as primary or secondary, the consultation paper states:
The nature of the crime, the seriousness of the crime and the likelihood of bodily substances being left behind by the perpetrator of the offence at the crime scene or on something related to the commission of the crime were factors in determining whether an offence is included in these lists. With a few exceptions the list of designated offences is limited to violent offences and sexual offences where there is a likelihood of bodily substances being left behind by the perpetrator of the offence. Primary designated offences are the most serious of these offences (p.6).
Before we get to considering these criteria, however, surely we begin by balancing the intrusion into privacy against the public interest in solving repeat violent crimes. The recent changes, as a result of the Anti-Terrorism Act, add and number of new offences, and move a number of typically terrorist offences from secondary to primary designated offences. This seems to recognise the seriousness of these offences, but raises two questions regarding the criteria for inclusion at all:
Are terrorist acts a sufficiently pressing problem in Canada such as to warrant this limit on freedom and privacy?
Are terrorists likely to recidivate?
The Anti-Terrorism Act was quickly passed last year in a climate of near hysteria after the attacks on the World Trade Centre and the Pentagon. One year on, the threat of terrorism in Canada seems far less imminent, and we now know that the likely perpetrators of those attacks would never have had DNA banked, had they been residents of Canada, as they had no criminal background.
The Anti-Terrorism Act designated new offences as primary designated offences. One wonders, for example whether DNA would be of use in solving offences such as approaching or entering a prohibited place, and whether this might tend to target people engaged more in civil disobedience, rather than terrorism. We suggest that the designation of terrorist offences as primary offences is a meaningless balm to public anxiety about an unlikely threat, and likely of no use should the threat become real.
We suggest that, in the absence of any convincing argument for the usefulness of DNA in solving terrorist crimes, the so-called terrorist offences (hijacking, endangering safety of aircraft, attack on premises of internationally protected persons, approaching a prohibited place, and so on) should be listed as secondary designated offences, even though some of them may be offences involving serious harm. Moving such offences to the list of secondary designated offences would at least place the burden on the Crown to justify the taking of a post-conviction sample.
Furthermore, on the list of secondary designated offences, one wonders how the inclusion of offences such as breaking and entering, and arson in respect of one’s own property relates to the objectives of the DNA data bank. Can it be shown that a significant number of persons convicted of break and enter go on to commit serious violent crime? We cannot find any rationale for the designation of such offences, and the reasoning needs to be made clear, before this intrusion into privacy can be justified.
ISSUE 2: Whether there is a need to amend the Criminal Code to allow DNA samples to be taken from individuals found not criminally responsible by reason of mental disorder for inclusion in the DNA data bank
In the case of an accused found not criminally responsible by reason of a mental disorder (NCRMD), under Part XX.1 of the Criminal Code, a court has found that the accused committed the criminal act in question, but is excused from criminal responsibility by reason of a mental disorder which rendered him or her incapable of appreciating the nature or quality of the act. This verdict does not result in a conviction, and there is therefore nothing presently in legislation authorising inclusion of the NCRMD accused’s DNA profile in the convicted offenders index.
If the Criminal Code were to be amended to allow DNA samples to be taken from NCRMD accused, it would be unfair to put any burden on the mentally disordered offender to show why an order for the taking of a sample should not be made. The application is likely to be made early in an accused’s treatment following a verdict of
NCRMD, and it would offend justice to expect an accused with a serious mental disorder to marshal the resources to oppose an application or competently instruct counsel to do so.
If the suggested amendment is made, the scheme authorising collection of the samples should mirror that for the convicted accused, including the designated offences, with the exception of the assignment of burden, as above. The public interest in obtaining the DNA sample is the same if the accused is found to have committed a designated offence, regardless of operation of a mental disorder exempting the accused from criminal responsibility. In essence, this would mean that for the NCRMD accused, all the designated offences would be treated as secondary designated offences so that the burden would be on the applicant (Crown) to show why the order should be made.
ISSUE 3: Whether there is a need to amend the Criminal Code to expand the scope of the “retroactive” aspect of the DNA data bank legislation
Inexplicably, although the stated purpose of the so-called retroactive aspect of the provisions is to collect samples from dangerous offenders, serial killers, and serial sex offenders, the criteria in the Criminal Code do not narrowly capture serial sex offenders in the same way as they do narrowly capture serial killers. The criteria in s.487.055(1) provide that a provincial court judge may authorise the taking of samples from a person who
(a) before the coming into force of this subsection, had been declared a dangerous offender under Part XXIV,
(b) before the coming into force of this subsection, had been convicted of more than one murder committed at different times, or
(c) before the coming into force of this subsection, had been convicted of more than one sexual offence within the meaning of subsection (3) and, on the date of the application, is serving a sentence of imprisonment of at least two years for one or more of those offences [emphasis added]
Under these criteria, a person might be convicted of two or more sexual offences, involving the same complainant on the same occasion, and would be swept up in a provision designed to target serial sex offenders. The words “committed at different times”, which appear in s.487.055(1)(b) should be added to (c), as follows:
(c) before the coming into force of this subsection, had been convicted of more than one sexual offence within the meaning of subsection (3) committed at different times, and, on the date of the application, is serving a sentence of imprisonment of at least two years for one or more of those offences
The provision for an ex parte application is offensive, as the judge is required to consider the impact an order would have on the convicted person, and yet there is no process for the interests of the convicted person to be represented. Other types of ex parte orders in our system of justice are followed by a period of time during which an absent party may apply to overturn or quash an order. The addition of such a provision to the legislation would address the unfairness of an ex parte application.
These questions were recently considered in British Columbia in the cases of R. v. Nadeau, 2002 BCSC 222, and Engum v. The Queen, 2002 BCSC 156. The Supreme Court in those cases specifically did not find the ex parte process offensive.
Notably, there is provision at s.487.054 to appeal the orders authorised in ss.487.051 and 487.052, and while the language in s.487.051(1)(a) is mandatory, there is an exception provision at (2) allowing the court in its discretion not to make an order authorising a sample where the impact on the person’s or young person’s privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders.
The orders resulting from the “retroactive” operation of the provisions at s.487.055 should be subject to similar procedural safeguards.
ISSUE 4: Whether there is a need to amend the Criminal Code to address certain procedural issues
(a) Ensuring the attendance of the offender for hearings under ss.487.051 and 487.052
These sections provide for a post-conviction application for an order to obtain samples for DNA analysis.
Ideally, the question of the DNA data bank order should be determined at the same time as the sentence. However, if there are outstanding issues to be argued or decided at the time of sentencing, it would be unfair to the convicted accused to have sentencing adjourned pending disposition of those issues. The sooner the sentence begins, the sooner it ends. Moreover, in the case of a custodial sentence, an unsentenced prisoner does not have access to the same programs and privileges as a sentenced prisoner. Remand time is harder time.
That being the case, it is appropriate to provide for an extension of the sentencing court’s jurisdiction beyond the imposition of sentence. The process could be in the form of an undertaking to appear and/or an order for the production of a prisoner (a “spring order”), and of course the authority for such order would have to be explicit in the Code. Failure to appear would result in a warrant for apprehension, as for any other court appearance.
(b) Ensuring the attendance of the offender for the execution of a DNA data bank order
The DNA data bank order is addressed to the police, not the convicted accused. While the Code provides that the sample is to be taken at the time of sentencing, or as soon as feasible afterwards, the practical problem of having a police officer available at the court house to take the samples has resulted, in British Columbia, in convicted persons being detained, sometimes for days, to await the taking of the sample. The authority in the Code for this type of detention is at s.487.07(2), which provides for detention “for that purpose for a period that is reasonable in the circumstances”.
The question to weigh is whether there is a greater civil liberties impact from detaining someone until a sample can be taken or from an order that a person attend at a certain place and time for the taking of a sample, and enforcing that order with a warrant for arrest in the case of a failure to comply. The answer to this is not obvious, since we must take into account the further criminal prosecutions which will result from the inevitable failures to attend. At the end of the day it is the convicted accused who will pay the price in lost liberty and criminal sanctions for the convenience of the police being able to take the samples at their pleasure.
We suggest that the cost of accommodating the convicted person in this matter is not unreasonable. It would require training sufficient staff for the relatively simple task of milking blood from a pricked fingertip onto a sample card, so that someone is available at least twice daily on court days (in smaller communities, this would only be one or two days a week). In that way, a convicted person would be detained no more than a few hours in order to provide a sample and would not be exposed to the risk of further prosecution for failing to attend for a sample.
The Code should be amended to provide authority for the detention of a convicted accused for the purpose of taking a DNA sample, and there should be clear limits on the length of that detention. What is “reasonable” from the point of view of administrative convenience and economy, may not be “reasonable” from the point of view of the convicted accused waiting in a local lock up until someone is available to take a sample. We suggest the limit should be either 12 or 24 hours. This authority would not need to be exercised in the case of persons receiving a custodial sentence, in which case the police may attend to take a sample at any time during the period of custody. The convicted accused could then be transported without delay to a facility for sentenced prisoners.
(c) Obtaining additional samples of bodily substances from an offender
It would appear from the information provided in the Consultation Paper, that about 1% of the 21,862 samples submitted to the DNA data bank are rejected. Well over half of them are rejected because there was no authority for their collection in the first place. So the experience during the early operation of the data bank, when we could expect the most mistakes, is that about 0.5% of samples submitted might be sent back for re-sampling, were there authority to do so.
Most of the rejections resulted either because the biological sample was inadequate, or because the wrong collection kit was used. We suggest that those cases are already covered by s.487.091, which authorises additional samples if “a DNA profile could not be derived from the bodily substances that were taken from a person”. We are left, then, with an insignificant number of samples (about 0.04%) which were rejected because of administrative or clerical error.
There is a very practical problem in bringing the peace officer and the subject together in one place for the taking of a subsequent sample. Do we authorise legal process to compel the attendance of the subject? The mere taking of the sample involves a detention and triggers rights under ss.7 and 9 of the Charter.
If, rather than compelling the subject to attend to provide a sample, we choose to authorise police to attend upon the subject at home, there is still a detention, and now there are privacy issues added to our list of concerns.
If there were to be a process to direct an individual to re-attend for the provision of additional samples, it would have to be by way of summons, enforceable by an application for an arrest warrant upon failure to attend. We submit, therefore, that an amendment is not warranted, since the incursion into individual liberty and the cost of administration in the criminal justice system vastly outweigh the benefit to society in addressing this small margin of error in data collection.
The error to be addressed is only 0.04% of samples in the early experience of the data bank when we should expect the highest rate of error. Do we want to have people arrested because they failed to attend to a summons which was issued because a clerical error caused the rejection of the original sample? Alternatively, do we want to have police attending at a person’s home to take a sample? The system will not be 100% perfect, and an error rate of 0.04% is poor rationale for such serious liberty and privacy consequences.
ISSUE 5: Whether there is a need to provide for re-sampling in some cases where access to the offender’s DNA profile has, by operation of law, been permanently removed from the national DNA data bank
Where a person is convicted of a designated offence and a DNA sample is taken, a further sample will not be taken if that person is convicted of a further designated offence. If, however, the original conviction is quashed on appeal, the legislation requires that the DNA profile taken from the first sample be destroyed. The present legislation does not specifically provide for the taking of a sample pursuant to the new conviction.
In the following hypothetical chronology, a person convicted of a primary designated offence may not have a sample and profile in the convicted offenders index. For example:
Year 2000, convicted of kidnapping
Year 2001, convicted of aggravated assault
Year 2003, conviction for kidnapping overturned
We suggest that in this circumstance it is certainly reasonable to provide for the taking of the second sample (this application is presently authorised under s.487.051), or the preservation of the original DNA profile in the data bank. The convicted accused should receive notice of the application and should be heard specifically on the issue of whether to preserve the first sample or order a second sample.
Conclusion
Privacy concerns
There is a need for increased protection of privacy and clear oversight. There is also a pressing need for foresight, and vigorous debate toward that goal. We need to anticipate where the pursuit of DNA information may lead us.
Mentally disordered offenders
The public interest in collecting DNA samples from NCRMD accused is the same as for convicted offenders, however the NCRMD accused requires greater protection. The burden should always be on the applicant to show why the order for a sample should be made.
Retroactive aspect
We are concerned about the fairness of the ex parte orders. The subject should have an opportunity to be heard, even if ex post facto. The words “committed at different times” should be added to the definition of serial sex offender at s.487.055(1)(c).
Procedural issues
The sentencing court’s jurisdiction should be extended beyond sentencing to allow for a later hearing under ss.487.051 and 487.052. The should be clear limits on the detention of a convicted offender for the taking of bodily substances. We suggest a limit of 12 to 24 hours is reasonable.
Additional samples
The current margin of error of 0.04% for samples rejected because of clerical or administrative error is acceptable. The problems created by a scheme to allow re-sampling of subjects to address this error outweigh the benefit of making the data bank 100% perfect.
Re-sampling where DNA profile removed by operation of law
There should be provision for this, which should include an opportunity for the subject to elect to preserve the original sample, if that is still possible.
