Presumption of Innocence and DNA

October 4, 2013

In a recent interview Conservative Justice Minister Peter McKay floated the idea of seizing DNA samples from people who have been accused but not found guilty of a crime.  As reported by the Globe and Mail McKay said:

“I know there’s always privacy considerations in the backdrop to this and
it has to be balanced in the bigger picture… But I
think that, you know, the timing of the taking of DNA is something that
could very well emerge in the future as another issue of importance.”

The presumption of innocence forms the bedrock of our judicial system.  It is the golden thread that runs through all criminal law.  If McKay’s vision comes to pass it will represent yet another erosion of the presumption of innocence.

Currently the Identification of Criminals Act allows the photographing and fingerprinting of most people accused of criminal offences.  Indeed this forms the justification used by the proponents of pre-conviction DNA sampling. 

In short, the simplistic logic is that a DNA sample is just the modern version of a finger print.  This narrow view misses the point.

The Identification of Criminals Act’s primary purpose is to confirm the identity people charge with a serious offence.   Fingerprinting fulfills the purpose of the act.  The taking of DNA for this purpose would be surplusage. 

Quite simply, the taking of DNA would not be to identify the accused but to run the DNA information through databases to further other investigations.  This is not the primary purpose of the Identifications of Criminals Act.

The Supreme Court discussed the issues in R. v. Beare; R. v. Higgins :

serve a wide variety of purposes in the criminal justice system. These
include linking the accused to the crime where latent prints are found
at the scene or on physical evidence; determining if the accused has
been charged with, or convicted of other crimes in order to decide
whether, for example, he should be released pending trial or whether he
should be proceeded against by way of summary conviction or indictment;
ascertaining whether the accused is unlawfully at large or has other
charges outstanding; and assisting in the apprehension of an accused
should he fail to appear. As well, fingerprints taken on
arrest are used to identify prisoners with suicidal tendencies, sex
offenders, career criminals and persons with a history of escape
attempts so that they can be segregated or monitored as may appear

are also of great assistance in the judicial process. Thus in addition
to their utility in positively identifying an accused, they may also
assist the Crown in determining the punishment it should seek by
revealing, for example, whether the accused is a first offender or
otherwise. This, of course, will be of assistance to the court in
imposing an appropriate sentence.”

The Supreme Court  went on to find that the taking of fingerprints valid because it did not represent a penetration into the body or the removal of a substance from the body:

“It seems to me that a person
who is arrested on reasonable and probable grounds that he has committed
a serious crime […] must
expect a significant loss of personal privacy. He must expect that
incidental to his being taken in custody he will be subjected to
observation, to physical measurement and the like. Fingerprinting is of
that nature. While some may find it distasteful, it is insubstantial, of
very short duration, and leaves no lasting impression. There is no
penetration into the body and no substance is removed from it.”

Clearly the taking of DNA is more intrusive and very different in nature than the taking of a fingerprint.

The power to fingerprint incident to arrest for an indictable offence has its roots in and exists at common law.  The existence of a common law
authority to fingerprint persons in lawful police custody is supported
by the decision of the Supreme Court of Canada in R. v. Stillman 
In that case the Court was careful to distinguish the taking
of fingerprints on the one hand from the taking of blood samples or hair

DNA is not a modern version of a fingerprint.  DNA is the building blocks of who we are as individuals.  DNA contains information about our intimate personal characteristics.  Its extraction requires intrusion into our body.  Its nature is ripe for misuse.  

There are currently institutional problems with the retention of fingerprints of individuals ultimately found to be not guilty.  Quite simply once the state has an innocent persons fingerprints there is an uphill battle in ensuring the prints destruction. 

It does not strain the imagination to conceive of the privacy problems with the state having DNA samples of any citizen ever charged with a crime. 

Demonstrating the rankest example of simplistic (and circular) logic employed by proponents of pre-conviction DNA seizure, Calgary’s Chief of Police Rick Hanson told the Calgary Sun:

“There’s a thousand reasons that people would say no and there’s only
one reason to go ahead with it and that’s because it’s the right thing
to do in this day and age,”

Logic like this has no place in any rational dialogue.  It may be politically advantageous for Mr. McKay to suggest a pre-conviction DNA databank.  It may even assist in solving some crimes.  Against the ‘thousands of reasons to say no’ this does not justify DNA sampling of the presumed innocent (and in many cases factually innocent). 

The purpose of laws in a free and democratic society should be to liberate and to maximize freedom.  McKay’s proposal is overly intrusive and antithetical to those ideals.