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Presumed Guilty: How the Government’s New DNA Proposal Undermines Section 8

The Federal Government has proposed yet another incursion into the civil rights of Canadians. In an interview with The Globe and Mail, Justice Minister Peter MacKay said that the government is considering collecting DNA samples of Canadians arrested for certain crimes. According to Minister MacKay, “Right now we’re limited to taking it on conviction … It could be expanded to take on arrest, like a fingerprint.”

Proposal Under Serious Consideration by the Federal Government

The proposal has moved beyond mere speculation. Mr. MacKay admits that he has already discussed it with Public Safety Minister Steven Blaney. Calgary’s police chief, Rick Hanson, has also spoken out in support: “No. 1, you ensure that you’ve got the right person … and No. 2, it would clear huge numbers of crimes where we have evidence, but we haven’t yet linked that evidence to the perpetrator.” Even Alberta’s premier Alison Redford backs the idea, calling it “certainly within federal jurisdiction.”

Canadians Everywhere Should Protest This Civil Rights Incursion

It seems that the government has made the proposal public to see how Canadians respond. We should all respond, “No.”

This proposal concerns not only participants in the criminal justice system but the community at large. It serves as another example of the continuing erosion of our Charter of Rights and Freedoms and is contrary to one of the most significant principles of criminal law: The Presumption of Innocence.

Taking an Innocent Person’s DNA Violates Section 8

The Federal Government currently takes DNA samples from persons convicted of certain crimes, such as murder or sexual assault. But there is a difference between convictions and arrests. In the former, a judge or jury has made the decision, beyond a reasonable doubt, that the person before it has committed the crime of which he has been accused. In the latter, no one has made any decision on guilt. The suspect is presumed innocent. Taking his DNA, despite his innocence, is an “unreasonable search.”

DNA Evidence is Not Similar to Fingerprint Evidence

Mr. MacKay, Chief Hanson and Premier Redford all argue that the process is similar to fingerprinting. We know that is not true.

First, as Chief Hanson admits, DNA testing will not only be used in the arrestee’s current case, but also in “cold cases” where the government has evidence but no perpetrator. That is equivalent to the police walking into your house after you’ve been arrested and searching it top to bottom to find proof that you’ve committed any one of thousands of unrelated crimes. The process may be faster, but it is the same.

Now imagine that after the police enter your house, they take all your bank records, doctors’ bills, insurance claims, diary entries, family photos, and any item that could have any bearing on you as a person. They put all of those items in a database for “future reference.” In the same way, your DNA contains your entire genetic profile. It contains details of your past, present and future. It contains information you may not even know existed.

A Slippery Slope We Should Not Start Down

And think of all the entities who would want that information – insurance companies, divorce attorneys, potential employers, to name a few. They could all entreat the government to release that information to them. It is a slippery slope, and one we should refuse to start down.

I understand why the police would want to use this technology. Solving cold cases is an admirable goal. But it should not be done in violation of Section 8. The United States allows DNA collection on arrest. The European Union does not. Where should Canada stand? It should stand by the Charter of Rights and Freedoms. It should stand up for the presumption of innocence.

Mitch Engel Barrister & Solicitor
2 County Court Blvd Suite 400 Brampton, ON L6W 3W8
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