Bill C-3, the DNA Identification Act
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Presentation to the Standing Committee on Justice and Human Rights
February 12, 1998
privacy Commissioner of Canada
(Check Against Delivery)
Ladies and Gentlemen, thank you for this opportunity to discuss with you the privacy implications of Bill C-3. You will already have received copies of my Office's responses to the government's discussion papers on this and the earlier Bill C-104. In essence, our position has not changed. However, as so often happens, other events have conspired to muddy what I hoped was a clear message. I am here to deliver it again, in person, and to submit myself to your grilling.
For those committee members who have sat through earlier privacy commissioner submissions, I beg your indulgence while I explain briefly for new members the broader meaning of the value you have tasked me to defend. For a thorough examination of the value and some options for its defense you could do no better than to read the report of the former Human Rights Committee chaired by Sheila Finestone.
That report, entitled Privacy, Where do we Draw the Line? was tabled just as the House rose for the last election. Thus it was rather lost in the crush of campaigning. I can only encourage this committee to adopt the report as its own and follow up its ground-breaking recommendations.
The timing is right.
First, the government has issued a discussion paper with a view to implementing some form of privacy protection in the private sector. Second, work is underway to build a national health information network to distribute patient information for personal care, research and administration. The network bristles with privacy issues. Third, governments seem to have become so fixated on efficiency, detecting fraud and saving money that they appear ready to put their citizens under information surveillance, witness the matching of travellers' Customs declarations with employment insurance claimants.
Privacy is more than simply the information right which the Privacy Act seeks to protect. Privacy is the value at the heart of our individual autonomy; the right to be free from interference, from surveillance, from coercion by others who would use information about us to influence our decisions. Privacy is, in the words of former Supreme Court Justice Gerald La Forest, "at the heart of liberty in the modern state".
While privacy is indeed an individual right, its value to society is far greater; in fact, it is fundamental to maintaining a civil society--respecting one another by maintaining the distance which is essential to our individuality while living closely together in society.
But both the narrow information right and the broader societal value are under attack as never before. The aggressor is the modern organization and the weapons are modern technology, the search for efficiency and safety at virtually any cost. And the price we may be asked to pay will be high, very high.
The technology at issue here, genetics and the information it can reveal, can be liberating. It promises greater understanding of our bodies and, potentially, better health. It can also be enslaving, threatening manipulation of our genes to produce someone's concept of "better" human beings, and pre-determining individuals' potential based on the genetic hand they were dealt.
Certainly, its use has literally been liberating for David Milgaard and Guy-Paul Morin. No doubt others will follow. The appeal of DNA analysis in criminal matters is evident. The issue before us is how to wield this tool as a scalpel to convict those guilty of serious, violent crimes. However, DNA analysis is simply too powerful a weapon to be aimed at every petty crime.
If our society's overriding goal were totally efficient law enforcement, much that forms the bedrock of our legal system would disappear. That may be the goal of authoritarian societies, but that is not your goal, and it is not mine. Our goal is to strike a balance between the many competing interests in society , those of law enforcement to protect our physical safety, and those of human rights to protect the values that are essential to life in a democratic society.
For an example of how easily one can slip into an authoritarian society consider the suggestion by the Metropolitan Police Commissioner in the U.K. that a DNA database be established on the whole male population in Britain. During its discussion, the British House of Commons committee concluded that, "Although the creation of a DNA database on the whole male population would undoubtedly be expensive, we consider it a development that would provide considerable benefits for the police."
This sentiment is chilling. If established, the database would amount to the vilification of an entire population on the suspicion that a small proportion of them will commit a crime that can be solved only by DNA evidence. In fact, while the British system of collecting DNA from criminal suspects has not yet become a database on the entire population, it has resulted in the collection of genetic information about an enormous number of British citizens.
Canada's approach to forensic DNA evidence has been much more restrained. By and large, Bill C-104, the predecessor to Bill C-3, struck a workable balance between law enforcement and privacy interests. Bill C-3 also attempts to strike a balance. In many ways it succeeds. However, Bill C-3 is not without its privacy problems. I would like briefly to explain these problems and then discuss them with you.
The Global Issue
My first caveat is general. Rarely is the democratic state allowed to intrude into the physical privacy of individuals, one of the few examples is impaired driving legislation which allows police to take breath and blood samples from individuals under certain conditions. Thus forensic DNA analysis joins a very exclusive club of physical intrusions that society tolerates of the state. Therefore it is essential that the intrusions inherent in forensic DNA analysis be restricted to those circumstances that are truly necessary in a democratic society.
The question at the foundation of this legislation is to what extent the crimes that may be solved or prevented justify the inherent dangers of storing DNA samples. In other words, will a DNA bank make the streets safer? If not, we should not build it.
Even if a DNA bank might make the streets safer, will the improvements be substantial enough to justify the risks? The most profound of these risks is what we call "function creep" or, to paraphrase author W.P. Kinsella, "if we build it,they will come". The mere existence of such a databank will beg further unrelated uses of DNA samples taken from offenders. Could measures other than a bank of DNA samples enhance public safety without the intrusions characteristic of DNA databanking?
I would like to deal with several specifics privacy issues that flow from the provisions of Bill C-3.
Retention of DNA samples
Bill C-3 requires the retention of the DNA samples taken from convicted offenders, rather than just the DNA profiles derived from the samples.
However, keeping these samples is not necessary for identification, and raises serious privacy issues. Police do not need to keep the offender's sample to compare with the DNA profile extracted from evidence at a crime scene. All that is needed is the identification information (the DNA profile) generated from the offender's sample.
Thus, the goal of forensic DNA analysis , linking a person to a crime scene , can be served without keeping the offender's sample. Some argue that it will be administratively more convenient and less costly to retain the offender's actual sample in a databank. It will also allow new forensic DNA identification technologies to be applied to existing samples without having to obtain new samples from the offender.
However, retaining a databank of genetic samples from convicted offenders will inevitably attract researchers who want to analyze the samples for purposes that have nothing to do with forensic identification. This scientific curiosity, coupled with growing pressure to reduce crime by whatever means, no matter how intrusive, will almost certainly lead to calls to use samples to look for genetic traits common to "criminals". This type of research, while perhaps of scientific interest and possible social value, raises complex legal, ethical and moral problems that we have yet to resolve.
The danger of ethically problematic research, coupled with our failure to deal with the storage of genetic information produced by such research, reenforces our call for extreme caution in assembling a collection of samples from convicted offenders. Administrative inconvenience and cost alone are insufficient to justify retaining samples. If the planned five-year review of Bill C-3 shows that not keeping samples presents insuperable obstacles to criminal investigators, my office will review its position at that time. In the meantime, it is sensible to use the least intrusive measure (that is, keep the offender's DNA profile, but discard the offender's DNA sample) that yields the necessary identification information.
Samples from volunteers
Bill C-3 will establish a DNA databank of samples taken from convicted offenders. The convicted offenders index will contain DNA profiles from convicted offenders. However, there appears to be nothing in the bill preventing the establishment of a DNA databank and index consisting of samples and profiles from innocent people who volunteer their DNA to help with police investigations. For example, in Vermillion, Alberta, the RCMP asked local men to volunteer DNA samples to help solve a serious crime. RCMP Commissioner Murray tells me that RCMP policy is to destroy volunteered samples but not the analysis of the samples.
I remind you that when people volunteer samples, a lack of a DNA match confirms that theirs was not the DNA left at the crime scene. Once the DNA analysis exonerates the volunteer, both the sample and any resulting profiles should immediately be destroyed. They should not be used to investigate crimes other than that for which the samples were volunteered. Otherwise obtaining volunteered samples could quickly become a back door for obtaining DNA samples on large numbers of innocent people from given communities.
Even if immediate destruction is the practice of some police forces, Bill C-3 should be amended to require destruction of volunteered samples and profiles. This would also resolve possible conflicts with data protection provisions that might otherwise require that information and samples be stored for a minimum period.
Range of offences
The range of offences for which samples can be taken from convicted offenders may be unnecessarily broad. Casting too wide a net will result in privacy intrusions on a massive level. For example, Bill C-3 allows a judge to order the taking of a DNA sample from someone convicted of what can be very minor offences involving minimal violence, such as common assault. In 1995, about 85,000 individuals were charged with common assault and about 48,000 were charged with break and enter (most people charged with such offences are eventually convicted or discharged). The bill includes both offences as "secondary designated offences", meaning that a court can order DNA samples from convicted offenders. Thus many relatively minor offenders could have their DNA added to the databank which eventually could encompass a large segment of the Canadian population.
The extent to which judges will order DNA taken from minor offenders will become clear only after the law is in operation for some time. However, the bill introduces the potential for the assembly of a DNA database on a significant portion of the Canadian (male) population.
Reopening the issue of taking DNA from suspects (both for investigative purposes and for inclusion in DNA databank)
Recently there have been calls to expand the circumstances in which DNA samples would be taken, including testing criminal suspects as opposed to those convicted of serious offences. In short, these calls amount to a restructuring of the process established in Bill C-104 and would allow routine DNA testing and make the process more akin to that for fingerprinting.
There is a serious flaw in equating traditional fingerprints and DNA samples. Fingerprints are static; they reveal nothing other than the person's identity. DNA samples do far more; while they can identify individuals, they also contain the individual's genetic blueprint.
My 1995 brief on forensic DNA analysis argued that DNA evidence should not be collected from suspects as a matter of routine. To do so causes an unnecessary privacy intrusion. In the vast majority of criminal cases DNA evidence will contribute nothing to the investigation because the crime is such that it will yield no samples from the crime scene. Thus, it is inappropriate for Parliament to give blanket authority to collect DNA samples from all persons suspected of indictable offences, particularly when investigators have no DNA evidence with which to compare the suspect's sample.
My concerns were largely accommodated in the DNA legislation enacted in 1995. DNA samples may be taken from a suspect only under a warrant. This warrant process respects privacy concerns, yet still makes genetic information available for forensic analysis when appropriate.
Testing simply for being arrested or charged with an indictable or hybrid offence would undo these procedural safeguards and the privacy protections they bring. I must profoundly disagree with those who argue that taking a genetic sample is a minimal intrusion. True, obtaining the physical sample may involve only a relatively minor procedure , taking blood with a finger lancet, using a buccal swab, or pulling several hairs. However, these acts remain state intrusions into our physical selves , intrusions which for centuries we have forbidden in all but the most compelling circumstances. And such broad testing would lead to little more than patent absurdities. For example, it would mean taking samples from persons arrested for or charged with any of the following offences, among many others:
- making a false certificate (Criminal Code section 378)
- failure by a ticket taker to collect a fare (Criminal Code section 393)
- selling reconditioned goods without identifying them as reconditioned (Criminal Code section 411)
- publishing a defamatory libel known to be false (Criminal Code section 300)
- removing a fixture, to the prejudice of the owner of a property (Criminal Code section 441)
- swearing a false affidavit (Criminal Code section 138)
- omitting to assist a police officer in the execution of his duty (Criminal Code section 129).
A genetic sample would have virtually no forensic value in proving any of these offences. Even permitting the taking of samples from those charged with indictable offences (but not hybrid offences) would lead to the same absurdity of collecting a sample for no purpose related to the crime in question, since several of the offences listed above are exclusively indictable offences, not hybrid offences. It makes little sense to use the fact of being charged with indictable or hybrid offences as a justification for obtaining a person's DNA for other investigative purposes. It would in effect allow DNA evidence taken for a relatively less serious offence to be used for a "fishing expedition" once the information is placed in a database.
Furthermore, we cannot ignore the psychological consequences of being poked and prodded by the state, however gently this is done in a physical sense. What does that do to a person's sense of autonomy and sense of freedom? Remember that the person is still presumed innocent at this stage of the criminal process.
Some witnesses will almost certainly propose amendments that would eliminate three of the four privacy safeguards that I had earlier proposed for the taking of samples from suspects: the requirement of a violent crime, the relevance of the DNA sample to proving the offence, and the requirement of a judicial warrant.
Opening up the process for obtaining samples from suspects to resemble that for fingerprints would also likely mean that once the DNA sample was taken from someone who had been charged with an offence, the sample could be used to investigate any crime. The 1995 legislation accepted that the DNA could only be used to investigate the designated offence in question, or any other offence arising out of the same transaction.
There are several remaining privacy issues that flow from Bill C-3 and the process of forensic DNA analysis in general. I have not dealt with them here, preferring instead to focus on the most significant issues. I invite the members of the Committee to review the written materials that were provided to you earlier.
Some of you may feel that my position is too restrictive, that it will impede effective law enforcement. That is not my intention. Nor, I firmly believe, will it be the result. Intelligent privacy protection is compatible with effective law enforcement. Let us give both a chance. I urge you to tread cautiously over this new ground and begin taking DNA from convicted offenders with the least intrusive approach.
I will be pleased to respond to your questions and comments.
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