The federal government is considering a move to collect DNA samples from suspects upon arrest for certain crimes, a significant expansion of current DNA databank laws that is raising concerns for criminal defence lawyers and civil-rights advocates.
In a recent interview, Peter MacKay told The Globe and Mail that he spoke with Public Safety Minister Steven Blaney over the summer about DNA databank legislation and how it can assist police with criminal investigations.
“I know there’s always privacy considerations in the backdrop to this and it has to be balanced in the bigger picture,” Mr. MacKay said. “But I think that, you know, the timing of the taking of DNA is something that could very well emerge in the future as another issue of importance.”
Currently, Canadian law allows for DNA samples to be taken from individuals who are convicted of a range of offences, including murder, sexual assault and, in some cases, dangerous driving or drug trafficking. The information can be used to link a suspect to a crime scene or eliminate suspects where a profile in the databank does not match DNA collected at a crime scene.
“Right now we’re limited to taking it on conviction,” Mr. MacKay said. “It could be expanded to take on arrest, like a fingerprint.”
Mr. MacKay characterized his conversations about the idea as “preliminary discussions.” However, he said he has followed the issue closely since his time working as a Crown prosecutor. “I maintain that, you know, a genetic fingerprint is no different and could be used in my view as an investigative tool.”
A spokesman for Mr. Blaney wrote in an e-mail that the office does not usually comment on possible coming legislation.
Defence lawyers and civil liberties advocates warn that the collection of DNA upon arrest could result in innocent people having their DNA stored – even after they are found not guilty or criminal charges against them are dropped.
“It’s really sort of cataloging the innocent. Until someone is found guilty, the presumption of innocence really has to mean something,” said William Trudell, who chairs of the Canadian Council of Criminal Defence Lawyers.
Other jurisdictions have already begun taking DNA collection upon arrest. Earlier this year, the U.S. Supreme Court ruled that police can take a DNA sample from a person who is arrested and charged with a serious crime. More than half of U.S. states and the federal government allow for the collection of DNA upon arrest for designated offences.
Conversely, a 2008 ruling by the European Union Court of Human Rights struck down a United Kingdom law that allowed DNA samples to be collected upon arrest and cataloged indefinitely – even in cases where charges are dropped or a person is found not guilty.
Abby Deshman, director of the Canadian Civil Liberties Association’s public safety program, said past Supreme Court of Canada rulings have reinforced the idea that DNA collection is highly intrusive. “There are so many people who are arrested and never found guilty … that to institute a sweeping personal information collection scheme on the basis of arrest would be very troubling,” Ms. Deshman said.
She added that some people already have difficulty getting their photographs and fingerprints destroyed when charges are dropped, “and I expect there would be similar difficulties with any kind of collect-now, dispose-later scheme” involving DNA collection.
Eric Gottardi, who chairs the Canadian Bar Association’s criminal justice section, said most people can acknowledge that there are investigative benefits to having a large database of DNA material. But he cautioned that DNA contains far more information than a fingerprint would, and for that reason, any scheme to collect that DNA samples upon arrest should include strict guidelines about how the information can be used.
“It doesn’t just simply identify you, it can identify all sorts of things about you and your ability to reproduce and all sorts of other more concerning ethical questions about the type of information that the government should have easy access to,” Mr. Gottardi said.
Mr. MacKay, who became justice minister in July, also said Ottawa plans to reintroduce legislation dealing with those found not criminally responsible of a crime due to a mental disorder. The bill would allow judges to designate some individuals as high-risk, which would increase the time between reviews of their detention.
The bill was introduced earlier this year but died when Parliament was prorogued this summer. Mental-health organizations have spoken out against the legislation, which they say stigmatizes those with mental-health problems and risks putting more pressure on prisons and treatment facilities.
Mr. MacKay said the legislation is needed because victims are not adequately considered by provincial review boards, particularly when it comes to a small number of violent cases. “Victim’s safety, in my estimation, is not being specifically taken into consideration by review boards when they make a disposition, and that’s appalling,” he said.