OTTAWA - A Senate committee has recommended extending a requirement for automatic post-conviction DNA samples to a total of 265 Criminal Code and Controlled Drugs and Substances Act offences that carry maximum sentences of five years or more.
Defence lawyers are criticizing the privacy implications of the proposal since the measure would eliminate a requirement for judicial approval of DNA sampling for the vast majority of cases.
But they say the federal Conservative government wants to go even further and require DNA samples for the same range of offences immediately after arrest.
The Senate legal and constitutional affairs committee included the recommendation in a report following a statutory review of the DNA Identification Act completed shortly before Parliament adjourned for the summer recess.
The committee, while recommending a sweeping extension of the requirement for mandatory DNA sampling after conviction, “does not support amending the Criminal Code to allow the collection of DNA from those arrested and charged with indictable offences,” according to the report.
But Vincenzo Rondinelli, a Toronto defence lawyer who gave evidence at the committee hearings on behalf of the Criminal Lawyers’ Association, and David Rose, another Toronto defence counsel who spoke to Law Times on behalf of the Canadian Council of Criminal Defence Lawyers, say there’s little doubt Prime Minister Stephen Harper’s government intends to institute post-arrest DNA sampling for indictable offences if the Conservative party wins a majority government.
“It’s clear they want to push for it, get it any way they can,” says Rondinelli.
Rose, who represented the defence lawyers’ council at a policy conference on criminal law in Ottawa last May, agrees there are indications the government wants to implement a post-arrest DNA sampling regime.
At the same time, both lawyers question the recommendation to extend automatic DNA sampling after conviction to such a sweeping array of offences, which the Senate committee itself noted had already “grown exponentially” since 1995, when Parliament enacted the first law allowing the courts to authorize the taking of genetic samples from adults and youth suspected of having been parties to a number of serious personal injury and sexual crimes.
A subsequent law, tabled in 1997, created the National DNA Data Bank and a legal framework to govern the storage, collection, and destruction of genetic samples and profiles held there.
Under the Harper government, Parliament amended the law again in 2008 to make DNA testing automatic for conviction under the original list of primary personal injury and sexual crimes while enlarging a list of secondary offences for which the court could order samples to include all offences under the Criminal Code and certain matters under the Controlled Drugs and Substances Act that carry a maximum jail sentence of five or more years and are prosecuted by indictment.
The Senate report says that if the government follows the recommendations, the number of offences requiring DNA sampling would increase by 246. For youth offenders, the addition of those offences to the mandatory list means a 12-year-old who pinches a classmate’s behind in the schoolyard could automatically have a DNA sample taken if a court found the child guilty of sexual assault, an outcome Rose says would be possible.
It’s likely the government will follow the Senate’s advice since the House of Commons justice committee has already made the same recommendation.
As for Rondinelli and Rose, they note the move would eliminate a judicial check in all cases.
According to Rondinelli, that means a 70-year-old man convicted of dangerous driving under the Criminal Code will have his DNA sample taken, stored in the data bank, and available should police some time in the future suspect he has committed another crime. He argues the invasion of privacy, which he considers a massive intrusion given the genetic information stored in DNA, is unjustifiable.
“The 70-year-old who gets convicted of dangerous driving, you’re not going to get anything in the future,” says Rondinelli, who provided the Senate committee with evidence from a study in Britain, which has expanded its DNA sampling and maintains a database of nearly seven million profiles, that showed the changes only marginally aided criminal investigations.
“Even though they upload about 650,000 profiles per year, they are only marginally receiving assistance in one in 800 criminal cases,” Rondinelli told the senators. “The cost is equivalent to training and paying 60 new police officers.”
In Rose’s view, Parliament and the government should wait for a ruling in a key case now under appeal in Ontario involving youth offenders. Ontario’s attorney general launched the appeal after Justice Marion Cohen of the Ontario Court of Justice struck down a Criminal Code section allowing DNA sampling of young offenders for violations of their s. 7 and 8 rights under the Charter of Rights and Freedoms.
The decision could have an impact on any legislation the federal government might table in response to the Senate report, says Rose, who represents the Canadian Civil Liberties Association as an intervener in the appeal.