The National DNA Data bank

The DNA Identification Act established a national DNA data bank to be used by police and intelligence agencies to assist with investigating and solving crimes. The DNA databank contains approximately 153,000 DNA profiles of convicted offenders. It also contains approximately 47,000 DNA profiles taken from crime scenes. (1) The DNA Identification Act authorizes the collection of DNA samples from anyone convicted of a “designated offence” and the storage of those samples in the data bank. The law applies retroactively to people who were convicted of designated offences before the law came into force.

The DNA Identification Act allows a judge to issue a warrant or make an order that requires an individual to provide bodily samples for DNA analysis.
A warrant is issued during the investigative stage, before the person is charged or tried. An order is made after the person is convicted of a designated offence.

A DNA Warrant for Investigative Purposes

A judge can issue a warrant (2) to require you to give a sample of blood or of oral fluid for DNA analysis if a police officer swears under oath that

  1. a designated offence has been committed, that a DNA sample has been obtained from the crime scene or crime victim;
  2. that there are reasonable grounds to believe the individual was involved in the crime and
  3. that DNA analysis of the individual’s sample will provide evidence that the sample from the crime scene or victim matches the individual’s DNA.

What If You Are Served With a Warrant to Give a Sample for DNA Testing?

If you are served with a warrant and are required to give a sample for DNA testing, you may ask to speak to a lawyer.
Do not resist giving a sample as you could be charged with obstruction if the warrant is later judged to be lawful. Comply with the warrant and cooperate in providing the sample.  Get a lawyer as soon as you can.

A DNA Order Made After Trial

After a trial, if a person is convicted of certain very serious offences, (3) the judge is required to order that samples be taken from them for the purpose of DNA analysis and inclusion in the DNA databank. (4) For other serious offences, (5) the judge has a choice whether or not to make the order, and when making the decision is required to consider a number of factors. These factors are

  1. the person’s criminal record;
  2. the nature and circumstances of the offence;
  3. whether they were ever found not criminally responsible on account of mental disorder for a designated offence;
  4. the impact of the order on the person’s privacy and security of the person; and
  5. whether that impact would be disproportionate to the public interest in the protection of society.

Review by Parliament of the DNA Identification Act

The DNA Identification Act is required to be reviewed by a parliamentary committee, and that review was taking in early 2009 as this chapter was being written. Hearings were held by the Parliamentary committee and many different groups gave evidence. Some representatives of the law enforcement community argued that the law should be changed to include more offences (including less serious offences), to require the taking of DNA samples from all arrested persons in the same way that fingerprints are now taken, and to allow searches for DNA that would indicate a family relationship. (6)
Representatives of a lawyers‘ association disagreed, as did the Privacy Commissioner of Canada.

They said that the DNA Identification Act was originally intended to apply to a very limited type of crimes but over the years has been expanded to include non-violent offences and offenders, which is a concern because DNA can reveal such sensitive and personal information not only about the individual but also about his relatives (because relatives share some of the same DNA).

When the DNA laws were first enacted a balance was struck between individual privacy rights and the public interest by requiring only those people who committed very serious offences to give a sample of their DNA. Now, although there is no evidence to show how collecting DNA samples from these less serious offenders makes our society safer or more just, the law requires it. Currently, there are strong privacy protections in place to manage the information in the DNA data bank and keep it secure, but the requirement to include more and more people in the DNA data bank is a threat to privacy rights.

The Commissioner’s office said that given the highly personal information contained in DNA, its use by the state should be carefully restricted and not expanded any further.

 

(3) Including murder, manslaughter, aggravated assault, aggravated sexual assault, kidnapping, robbery and extortion.

(4) Recently however, a lower court in Ontario declared it unconstitutional to apply this mandatory requirement to young people convicted under the Youth Criminal Justice Act: R. v. S. (C,) et al., 2009 ONCJ 114 (Can LII). The case is expected to be appealed.

(5) Including offences involving assault, human trafficking, terrorism, child pornography, breaking and entering, intimidation of a justice system participant or journalist, piracy, facilitating terrorist activity, uttering threats, assaulting a police officer, possession for the purposes of trafficking, driving offences, including dangerous or impaired driving causing bodily harm, and offences committed before the DNA Identification Act came into force.

(6) They suggested that a buccal swab is no more invasive than taking fingerprints so DNA samples should be treated the same way as fingerprints.  They also suggested adding more indexes, including a human remains index to assist in identifying missing persons, a deceased offender index to assist in solving crime, and a voluntary live victims index to provide linkage to other victims, human remains, crimes, and offenders.