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Detective Constable Christine Handy collects DNA on a Smith & Wesson 40mm handgun at the Toronto Police Service Forensic Identification Services (FIS) laboratory June 20, 2013. (Moe Doiron/The Globe and Mail) (Moe Doiron/The Globe and Mail)
Detective Constable Christine Handy collects DNA on a Smith & Wesson 40mm handgun at the Toronto Police Service Forensic Identification Services (FIS) laboratory June 20, 2013. (Moe Doiron/The Globe and Mail) (Moe Doiron/The Globe and Mail)

Globe editorial

The case of the gene-bearing suspects Add to ...

Peter MacKay, the Minister of Justice, said, in an interview with The Globe this month, that he and his colleagues were considering drafting a bill that would empower police officers to collect a DNA sample from someone suspected of certain crimes at the time of that person’s arrest.

The harvesting of DNA samples should not become routine; it should not be treated as equivalent to the taking of fingerprints. A judge’s warrant should continue to be required, not just a police force’s preference for accumulating more and more genetic data.

If DNA databanks concerned with Canadian crime become too vast, they will become harder and harder to confine to their legitimate, intended purposes. Everyone’s genome is rich in information, revealing multitudes of traits and vulnerabilities.

A person’s body, with its unique genome in all its cells, will not change in the time it takes for a judge to assess whether there is a rational connection between the demand for a DNA sample and the case at hand. At present, applications for such an order can be made ex parte, that is, a prosecutor can ask for it without any defence lawyer hearing about it; as this kind of evidence becomes more important, maybe there should be notice to the accused about such hearings.

To be sure, the investigation of an apparent crime that specifically involves bodily substances and biological evidence – such as blood and semen – may well call for obtaining DNA samples from an arrested suspect.

A majority of states in the United States – 28 – permit officers to take DNA samples for all “serious crimes,” which are known by the old-fashioned term “felonies.” It is to be hoped that Mr. MacKay and his colleague Steven Blaney, the Minister of Public Safety, are not thinking of requiring genetic material for, say, all indictable offences in the Criminal Code. The current list of offences for which samples can be sought is already a long one.

It would be hard, for example, to see how most serious fraud cases would need biological evidence; printouts of spreadsheets and other accounting records are unlikely to have been dipped in blood.

Mr. MacKay said in the recent interview that he had been following the issue of assisting police with DNA samples and databank legislation, “going back to my days as a Crown prosecutor.” And in 1998, as an opposition MP, he advocated that police officers should be allowed to collect DNA samples when a charge is laid.

But a remarkable decision in June from the Supreme Court of the United States, Maryland v. King, may have restimulated Canadian attention to this question.

A narrow majority of the court said that the taking of a DNA sample from an arrestee was essentially not different from getting a fingerprint, for the purpose of making sure of the person’s identity; if the sample happens to help solve a cold case, that is just icing on the cake.

The minority was an unusual combination: the very conservative Antonin Scalia and three liberals. Justice Scalia’s opinion was scathing, essentially saying that the majority of the justices did not sincerely believe their own argument, based on identification.

Like the majority in Maryland v. King, Mr. MacKay said in the recent interview that the taking of DNA samples – which can already be obtained without their consent from persons who have been convicted – could be expanded so as to gather them “on arrest, like a fingerprint .... A genetic fingerprint is no different and could be used in my view as an investigative tool.”

To his credit, the Minister of Justice is not taking the simplistic view of the Supreme Court majority in the American case of Maryland v. King, that the purpose of sample-taking is merely identification, in order to verify that the arrested person is who he or she seems to be. Mr. MacKay is quite clear and forthright in saying that the purpose would be investigative.

He also said, however, “I know there’s always privacy considerations in the backdrop to this, and it has to be balanced in the bigger picture.” He was right to invoke the principle of balance, but some hint of dismissiveness may be discernible in the word “backdrop.”

As Benjamin Berger, a professor at the Osgoode Hall Law School in Toronto, says, privacy should not be a backdrop factor, but very much at the forefront. The Supreme Court of Canada has clearly said that the Charter protects “a biographical core of information.”

A genetic core of information may go much deeper – even though a police officer taking a buccal swab from the inside of someone’s cheek is admittedly not the most violating of intrusions.

In Maryland v. King, Justice Scalia said that the whole question was really about police officers looking for clues to cold cases – a fishing expedition, rather than dealing with the case at hand. Interestingly, Mr. MacKay, who is apparently on the other side of this debate, made the same point repeatedly in his 1998 speech in the House of Commons – for example: “The evidence of [a particular] investigation could be used to see if there was a match with unsolved crime or crime scenes from other, unsolved matters.”

Casting a net so widely for DNA is likely to lead to a loss of control of people’s confidential material and to overflowing, unmanageable criminal databanks. The present regime, in which a judge has to authorize a warrant to take a sample from the body of someone seriously suspected of a crime, helps give a balance: between investigative effectiveness and invasion of our genomes.

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