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Canadian Supreme Court upholds DNA databank

The Supreme Court of Canada has upheld the legality of the DNA database, including the retroactive collection of profiles. This decision supports the DNA Identification Act of 1998 and sees the taking of DNA from those who are convicted of serious offences not so much as a search but more as an act that enables identification.

In the case R v Rodgers (2006), decided 4-3, the Court was asked to consider, amongst numerous other issues:

  • Whether collection of DNA samples for data bank purposes from designated classes of convicted offenders was reasonable.
  • Whether data bank provisions strike an appropriate balance between public interest in effective identification of persons convicted of serious offences and rights of individuals to physical integrity and control of release of information about themselves.
  • Whether ex parte nature of proceeding meets minimal constitutional imperatives of procedural fairness.
  • Whether imposition of DNA sampling order amounts to “punishment”.

The case involved an individual, Dennis Rodgers, who was sentenced to four years in prison for sexual assault, an assault that was committed while he was on probation for a conviction for sexual interference. No DNA was taken at the time of conviction as it occurred prior to the 1998 DNA Identification Act. Before release the Government applied to a judge to get DNA samples from Rodgers, not for the purpose of an ongoing investigation but rather only to place it within the national DNA 'databank'.

Under the law, three classes of previously convicted and sentenced offenders could have their DNA samples taken:

  1. 'dangerous offenders'
  2. persons convicted of "more than one murder committed at different times"
  3. persons convicted of "more than one sexual offence"

Rodgers argued that this practice unconstitutional because of a lack of procedural fairness in that he could not contest before the judge the taking of the sample, there were no reasonable and probablyg rounds to link the offender to a particular unsolved crime, and the offender is 'punished' again through this process.

The majority decision, penned by Justice Charron, found that while taking DNA samples without consent did constitute a seizure within the meaning of s.8 of the Canadian Charter of Rights and Freedoms, "the collection of DNA samples for data bank purposes from designated classes of convicted offenders is reasonable".

Relevant quotations from the decision, available in full on the University of Montreal Lexum Site, include:

"The provisions put DNA technology to use to identify offenders in a manner analogous to fingerprinting and other identification measures. Society’s interest in using this powerful new technology to assist law enforcement agencies in the identification of offenders is beyond dispute."

Furthermore, in restricting the use of DNA sampling for data bank purposes to an identification tool only, Parliament has adequately answered any heightened concern about the potentially powerful impact that DNA sampling has on the informational privacy interests of the individual. In this case, R had no reasonable expectation of privacy in respect of his identity."

The use of this new technology has not only led to the successful identification and prosecution of many dangerous criminals, it has served to exonerate many persons who were wrongfully suspected or convicted. The importance of this forensic development to the administration of justice can hardly be overstated. At the same time, the profound implications of government seizure and use of DNA samples on the privacy and security of the person cannot be ignored. A proper balance between these competing interests must be achieved within our constitutional framework.

The data bank provisions strike an appropriate balance between the public interest in the effective identification of persons convicted of serious offences and the rights of individuals to physical integrity and privacy. Having regard to the competing interest at play, there is no constitutional requirement to link the convicted offender, on reasonable and probable grounds, to any particular investigation.

A DNA sampling is no more part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence than the taking of a photograph or fingerprints. The fact that the DNA order may have a deterrent effect on the offender does not make it a punishment.

In Charon's decision much is made of the focus of the legislation upon 'serious' and designated offences as contained in the DNA Identitication Act of 1998. That is individuals are considered repeat dangerous offenders (though she admits that the law has since been changed to remove the 'repeat' offence for murder, so someone convicted of a single murder falls under the Act). Generally the law is seen as applying to convicted violent offenders. And her decision also repeatedly notes the fact that it involves 'convicted offenders', as their expectation of privacy is greatly reduced.

Charon also notes the privacy implications and protections in the legal regime. They include that:

  • Authorisation is obtained by application to a provincial court judge.
  • Samples may only be used for forensic DNA analysis.
  • Samples may be used only for comparing offender profiles with crime scene profiles, i.e. 'identification only'.
  • Communication of the existence of a person's profile within the database is only done so by law enforcement agencies and labs for investigative purposes, or to the RCMP's automated conviction records retrieval system.
  • Although samples are retained they may be used only in the future if necessary that technology changes sufficiently to require renewed profiling.
  • There is a DNA Data Bank Advisory Committee, including representation from the Privacy Commissioner of Canada.
  • Profiles may be shared with other governments, but not the stored samples, provided that there are safeguards to protect the data from misuse and further disclosure.

As to whether it involves an unreasonable search, under Canadian constitutional law a search must have been first approved by prior authorization; this is authorised by a judicial authority, and there are reasonable and probable grounds, established under oath, to believe an offence has been committed and that evidence of this is to be found through the search or seizure. Rogers contests that this last constitutional norm is not met by the Act.

The Government argued that the Act had a broader purpose: the DNA databank also acts as a deterrance for repeat offenders, promots the safety of the community, detects serial offenders, assists in solving cold crimes, streamlines investigations, and assists the innocent by early exclusion from suspicion (and exonerating those who have been wrongly convicted).

Unlike Rogers' approach that sees the taking of DNA as an illegal use of investigative search, the Government sees the practice as similar to the taking of fingerprints for identification purposes. Rogers doesn't agree with that analogy, "arguing that the potential impact on the privacy of the individual is far more significant with DNA sampling than with fingerprinting." Pointing to the fact that DNA can e used to find out much more information about an individual, he says this goes well beyond mere identification and could include identifying relations with other persons, ethnic traits, physical characteristics and medical conditions.

Charon rejects Rogers' approach however.

Unlike the warrant provisions, the DNA data bank provisions do not target suspected offenders in respect of particular offences. Rather, they target offenders who have been convicted of different categories of offences. They do not provide for the gathering of evidence for use in a specific prosecution. Rather, they provide for the collection of samples solely for the purpose of creating DNA profiles for inclusion in the data bank. In any future investigation, a comparison between DNA evidence obtained at a crime scene and the data bank DNA profile will either serve to exonerate or identify a suspect. However, if a crime scene DNA profile matches an existing profile in the data bank, the sample is not released. Usual investigative methods, including DNA warrants, must be resorted to in order to gather evidence in pursuit of the investigation.

Thus she agrees with the focus on 'identification' instead of the search and seizure.

"It is beyond dispute that DNA sampling is a far more powerful identification tool than fingerprinting. Therein lies the heightened societal interest in adding this modern technology to the arsenal of identification tools."

The majority decision penned by Charon does raise concerns with privacy however, noting that DNA does go well beyond fingerprints. But the majority contends that the safeguards established within the DNA Identification Act is sufficient in this regard, particularly in the use of samples. So while Rodgers has a residual privacy interest, the DNA databank is used for identification purposes only.

The issue then becomes: does Rodgers have any reasoanble expectation of privacy in respect of his identity. Because DNA bank authorization is confined to offenders who have been convicted of designated offences, and that these offences "may generally be described as the more serious offences under the Criminal Code and offences in respect of which it may reasonably be expected that DNA may be left behind by the offender". According to the majority decision, constitutional law dictates that such individuals convicted of designated offences can not reasonably expect to retain any degree of anonymity after their conviction.

In my view, Mr. Rodgers’ identity as a multiple sex offender has become a matter of state interest and he has lost any reasonable expectation of privacy in the identifying information derived from DNA sampling in the same way as he has lost any expectation of privacy in his fingerprints, photograph or any other identifying measure taken under the authority of the Identification of Criminals Act.

She concludes on this point stating that there is an appropriate balance struck between the public interest in identifying those convicted of serious offences and the rights of individuals to physical integrity and the right to control the release of information about themselves.

In dissent, written by Justice Fish, the three justices were critical of the databank and the power of the Government to seize DNA even though it must be authorised by a judge.

The DNA data bank constitutes a substantial and novel invasion of privacy. A ‘hit’ between a sample in the data bank and one in the DNA crime index will often qualify as a sufficient basis for obtaining a DNA search warrant for the offender. While traditional investigative techniques are still required, the DNA data bank facilitates the process, pointing to specific offenders who remain in the data bank for life.

For more information see the decision in full.

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