Statutory review of the DNA Identification Act

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Appearance before the Standing Committee on Public Safety and National Security (SECU)

February 26, 2009
Ottawa, Ontario

Opening Statement by Lisa Madelon Campbell
Acting General Counsel

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Parliament first enacted forensic DNA provisions in Canada’s Criminal Code close to twelve years ago.  The goal of the legislation was to facilitate obtaining genetic samples from individuals suspected of having committed one of a clearly defined range of serious violent offences.  Where a person was suspected of having committed a sexual assault, for example, and DNA from the presumed assailant was found at the crime scene, the legislation provided a scheme for obtaining a warrant to authorize the taking of a DNA sample from the suspect. If the samples from the suspect and the crime scene matched, this became powerful evidence that the suspect had been at the crime scene.

Further DNA legislation, the DNA Identification Act, was enacted in 1998 and came into force in 2000.  The Act created a national DNA data bank.  The Act authorized the collection and storage, for DNA analysis, of biological samples from anyone convicted – as opposed to merely suspected – of a “designated” offence; generally a serious offence involving violence.  The RCMP retains the data bank, and it is used to help law enforcement agencies in investigating serious crimes by comparing the database of samples linked to known offenders with samples found at crime scenes.

The operation of the data bank is monitored by a DNA Data Bank Advisory Committee, which includes an official representative from our Office, Assistant Privacy Commissioner Chantal Bernier, as well as representatives of the police, legal, scientific and academic communities.  The Committee meets two to thee times a year and provides a forum for discussing policy and operational issues. 

The National DNA data bank managers have gone to great lengths to remove the personal identifiers from the DNA sample so that only authorized personnel would have access to the information to conduct criminal investigations.

The Office of the Privacy Commissioner did not oppose establishing this limited warrant scheme to allow DNA to be obtained from those suspected of serious violence where DNA had been found at the crime scene.  Nor did we oppose creating a DNA data bank of samples taken from those convicted of serious offences involving violence.

We have argued for clear controls and conditions for collecting DNA samples from suspects to help determine their culpability.  We also advocated for clear rules and limits on the taking of DNA from convicted offenders.  In large part, our concerns were met in both the 1995 and 2000 legislation. 

However, we are concerned about the apparent shift in focus of the DNA legislation. Both the original 1995 law that allowed samples to be taken from certain suspects and the later amendments that established the DNA data bank show that the central focus of these provisions was serious offences involving violence.  If the offence was not of this nature, there would generally be no power to compel the production of a DNA sample from a suspect, and no power to include a convicted offender’s DNA in a criminal database.

In the years since the DNA Identification Act was passed, the scope of the DNA scheme has been expanded, first by the Anti-Terrorism Act and then by Bill C-13.  The ATA added a number of new offences and moved some offences from the secondary to the primary category.  Bill C-13 expanded the list of designated offences even further to crimes such as extortion, Internet luring, administering a noxious substance and others that are unlikely to produce crime scenes where DNA samples could be obtained. Our Office has expressed the view that there is no demonstrable evidence to show how collecting DNA samples for these additional offences will help us achieve a safer and more just society. 

We requested but did not receive information from the federal government supporting the rationale for expansion of the data bank.  With the addition of the terrorist offences and the C-13 offences the rationale of the program seems to have altered. Rather than primarily being a means of linking DNA of offenders who have committed serious violent and/or sexual offences with DNA found at the crime scene of similar offences, the data bank is being populated by the DNA of offenders who have committed a much wider range of offences that are not necessarily violent or sexual in nature.  The Office of the Privacy Commissioner views this as a fundamental shift away from the original rationale of the data bank – it was intended to apply only to designated offences which consist of violent and sexual offences that might involve leaving DNA at a crime scene.

While the taking of a DNA sample via a swab of oral fluid or buccal cells may appear to be a relatively minor intrusion in a physical sense, the information that may be generated from DNA is vastly greater than that available from any other biological source. One major assumption underlying DNA databases is that the DNA of the population from whom the samples were taken is sufficiently homogeneous that differences in a given strand of DNA may be interpreted as statistically significant.  The scientific exploration of human beings is far from complete.  The human genome was sequenced in its entirety in 2003, and scientists have a relatively good understanding of the technical composition of DNA.  Less is known, however, about the human genome’s highly complex structure and functions. DNA data extracted from a biological sample can provide insights into an individual’s familial connections, ethnicity, ancestry, physical attributes, genetic mutations and medical predispositions. DNA data represents the intersection of both physical privacy and informational privacy interests.

We believe that, in principle, the number of offences for which DNA samples can be taken and included in the data bank should be kept to a minimum, and that the identification of offences for which such measures are to be allowed must be based on a clearly articulated and demonstrably justifiable rationale.

While governments worldwide have established DNA databanks, the courts are cautioning against their overbroad application.  The European Court of Human Rights recently held that two British men, who were arrested but not convicted of any offences, should not have had their DNA and fingerprints retained by police: S. and Marper v. The United Kingdom, December 2008.  The judges ruled that such information was in violation of Article 8 of the European Convention on Human Rights, namely the right to respect for private and family life. Thus, the Court found that the blanket registration of DNA profiles or fingerprints of any people acquitted of crime or whose proceedings are ceased prior to any conviction is a violation of their fundamental right to respect for their private life, as established in the Convention.

Several US judges have also voiced serious concerns about DNA databases, and found that programmatic, suspicionless searches would be constitutionally unreasonable.

We are concerned about familial searching which may produce false positives - samples that look like they might be relatives but are not, as well as false negatives – close blood relatives whose DNA profiles do not suggest kinship.  Our Office questions whether the National DNA Data Bank should be able to transmit the identity of a convicted offender when it has concluded that the crime scene index data comes from a close relative of the person in the convicted offender index.

The Act allows the National DNA Data Bank to share information on a case by case basis with a foreign jurisdiction, in accordance with paragraph 8(2)(f) of the Privacy Act.  We are concerned about international sharing of DNA information from the database. Our understanding is that this is currently done on a case-by-case basis, and in accordance with mutual legal assistance agreements that apply to protect the personal information that is shared. The Office of the Privacy Commissioner recommends that there be tight control and oversight over the sharing of DNA information with foreign states. 

Our Office supports the continued sound management and built-in safeguards against misuse of the National DNA data bank.  These include separating genetic and personal data, prohibiting unauthorized persons from entering the data bank and penalizing those who attempt to do so.  We support the prohibition against using samples for research, and are of the view that use of the data bank should continue to be restricted to forensic identification purposes.

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