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No notice needed to take DNA samples

|Written By Kirsten McMahon

In upholding key provisions of the DNA databank legislation, the Supreme Court of Canada has ruled that convicted offenders don''t need to be notified when applications are made for retroactive DNA samples.In its 4-3 decision in R. v. Rodgers, Justice Louise Charron, writing for the majority, ruled that the competing interests of the benefits of DNA technology (identifying criminals and exonerating those wrongfully convicted) and privacy issues must achieve a balance in the constitutional framework. However, the majority ruled that society's interest in public safety trumps the rights of those who commit serious offences.

"Society's interest in using this powerful new technology to assist law enforcement agencies in the identification of offenders is beyond dispute," she wrote. "The resulting impact on the physical integrity of the targeted offenders is minimal. . . . As convicted offenders still under sentence, the persons targeted by s. 487.05 have a much reduced expectation of privacy."

The case involves Dennis Rodgers, a repeat sexual offender from Sudbury, Ont., caught by the retroactive portion of the national DNA databank law that required him to provide a sample of DNA even though he was convicted before the law was passed.

He argued that the provision is unconstitutional because an ex parte proceeding denies procedural fairness; it permits seizure of DNA evidence without first establishing reasonable and probable grounds to link an offender to an unsolved crime; and it punishes the offender again for a predicate offence and denies the benefit of a lesser punishment at the time of his conviction for the offence.

"In my view, it was not a great surprise that they upheld it," says David Rose, a criminal lawyer with Toronto's Neuberger Rose LLP. "It follows a long line of decisions by provincial appellate courts and the Supreme Court of Canada, which have upheld the DNA warrant and databanking regime.

"The reasons that they provide are not substantially different than previous decisions on the topic," he says.

However, the Conservative government's campaign promises to include more offenders in a separate national sex offender registry and mandatory DNA sampling of all sex offenders and dangerous offenders could run afoul of the case law.

"The government is now taking steps to amend the whole regime. The question is whether or not the new amendments will stand Charter scrutiny in the way that the current regime has appeared to have withstood Charter scrutiny," says Rose.

"It's going to be interesting because if the proposed balance alters, then all of the jurisprudence which we now have, which has been developed over the last five years, is going to change. It may very well ground renewed Charter attacks."

Leo Adler, a criminal lawyer with Adler Bytensky Prutschi, says if there's anything to be pleased about in the decision, it was the dissent written by Justice Morris Fish, which stated that there is no cause or justification for proceeding ex parte.

"I was pleasantly surprised that it was a 4-3 decision at least on the issue of notice," he says.

Attorney General Michael Bryant applauds the Supreme Court for its decision and says that DNA evidence is one of the most powerful crime-fighting tools available.

"The constitutional validity of the section of the federal DNA databank legislation dealing with retroactive offenders has been upheld, and this decision makes it easier to obtain retroactive DNA samples from offenders who should be in the databank," says Bryant.

Adler says that many people have the notion that not only is DNA evidence error-free but that it's foolproof. He points to the crime lab of the Houston Police Department.

Recent DNA tests on evidence from the department's crime lab were found to be inconclusive in 22 cases, including three capital murders for which the defendants are serving life sentences.

"There's no reason for us to believe that we're any different," he says. "This sort of sanctimonious, holier-than-thou attitude that we have is not conducive to justice.

"God knows we've had enough evidence of wrongful convictions that we should take a rather more prudent approach rather than simply accepting these things."

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