The idea is, of course, getting support from the police. RCMP Commissioner Bob Paulson said that allowing police to take DNA from people on arrest would help solve more crimes.
No argument there; mass collection of DNA samples would help solve more crimes. It also likely would be unconstitutional and would represent another advance in a trend towards the erosion of individual rights in this country.
Mr. MacKay’s proposal represents a disregard for the presumption of innocence. It’s too high a price to pay merely to make police work more efficient.
Let’s say it again: When you are charged with a crime in this country you are presumed innocent. That presumption of innocence forms the bedrock of our judicial system. It’s the golden thread, the principle that runs through all criminal law. And it’s dying a death by a thousand cuts.
Currently, the Identification of Criminals Act (a title that itself is an offence against the presumption of innocence) allows the photographing and fingerprinting of most people accused of criminal offences. This is the practice that forms the justification used by proponents of pre-conviction DNA sampling.
It’s a simplistic argument and it goes like this: A DNA sample is just the modern version of a fingerprint and its collection is therefore justified. Which misses the point completely.
The primary purpose of the Identification of Criminals Act is to confirm the identity of people charged with serious criminal offences. The current measures in the act satisfy this purpose and make the collection of DNA for identification superfluous.
But identification is not the motivation for taking DNA — investigation is. The idea here is to run an accused’s DNA through databases to further other investigations.
The power to fingerprint incidental to arrest for an indictable offence has its roots in the common law. The existence of a common law authority to fingerprint suspects in lawful police custody is supported by the Supreme Court of Canada in R. v. Stillman. In that case, however, the Supreme Court was careful to distinguish the taking of fingerprints from the taking of blood or hair samples.
The Supreme Court has also ruled that the taking of fingerprints is a valid exercise because the process does not represent a “penetration into the body or the removal of a substance from the body”. Clearly, the taking of DNA is more intrusive and very different in nature than the taking of a fingerprint.
DNA is not simply the modern version of a fingerprint. DNA contains information about our intimate personal characteristics — about who we are. Its extraction is as intrusive as you can get. Its nature makes it ripe for misuse.
An unconstitutional expansion of DNA sampling is simply not necessary. The police already have the ability to seeking DNA samples from individuals prior to conviction. If they can demonstrate reasonable and probable grounds to believe that an offence has been committed — and that a DNA sample will provide evidence in relation to that offence — police can seek a DNA warrant.
The requirement for judicial oversight and the need for reasonable grounds in order to obtain a pre-conviction DNA sample balances privacy rights, respects the presumption of innocence and fulfils society’s need to investigate and prosecute crimes. Remove that judicial protection and you create a policing shortcut that undermines the principles that form the foundation of our justice system.
This is especially true given the current institutional problems with the retention of fingerprints of individuals ultimately found to be not guilty. Once the state has your fingerprints on file, getting them to destroy those records after a not-guilty verdict is an uphill battle. This problem would only be magnified if police were able to collect DNA before a conviction.
Demonstrating the simplistic, circular logic employed by proponents of pre-conviction DNA seizure, Calgary’s Chief of Police Rick Hanson said:
“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.”
Nonsense. There is no constitutionally sound justification for mass DNA sampling of the presumed innocent. It may be good politics for Mr. MacKay; it’s also unprincipled, inconsistent with the fundamental principles of our justice system and very likely unconstitutional.
The principle of the presumption of innocence has been under assault in recent years. MacKay’s pre-conviction DNA sampling proposal may be the the final cut that severs the golden thread.
Original Article
Source: ipolitics.ca/
Author: Michael Spratt
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