Innocence at Stake: Possibility of DNA Collection from Arrestees in Canada
Abstract: Followed by a decision of the Supreme Court of the United States, which approved the collection of a defendant’s DNA upon arrests under the Fourth Amendment, the Minister of Justice, Peter MacKay indicated in an interview with the Globe and Mail that he and his Ministry are considering a similar model for Canada. This paper examines the possibility of a similar legislative framework in Canada and argues that although collection of DNA upon arrests was found justified under the Fourth Amendment, it does not necessarily mean that it will be found justified under the Canadian Charter of Rights and Freedoms. While s.8 of the Charter seems to give similar protection as the Fourth Amendment, they have very different requirements for judicial authorization, reasonableness and standard of probable cause. Scrutinizing those different requirements and standards, this paper holds that the process of DNA collection is highly intrusive and would be a serious violation of s.8 of the Charter as it could reveal an excessive amount of private information about an individual over which he/she has a strong reasonable expectation of privacy. Furthermore, it will deprive people from their right to be presumed innocent, which is protected under s.11 (d) and significantly impact socially marginalized groups. Finally, this paper conducts an analysis of the violations under s.1 of the Charter and indicates that none of the violations can be justified in a free and democratic society.
Summary (1 min read)
- In a recent judgment, the Supreme Court of the United States approved the collection of a defendant’s DNA upon arrests under the Fourth Amendment.
- This paper scrutinizes those different requirements and standards6 and holds the view that the process of DNA collection is highly intrusive as it could reveal an excessive amount of private information about an individual over which he/she has a strong reasonable expectation of privacy.
- E. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of DNA analysis technology was itself objectively unreasonable; g. whether the DNA profile exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature.
- In conclusion, it is clear that although DNA collection might be a useful identification tool for law enforcement, it can reveal some of the most unique and biographical core of personal information about an individual that should not be under the possession of the government without prior judicial authorization based on probable cause.
- A search of arrestees that includes DNA collection without their consent or a valid warrant will always infringe on their right to reasonable expectation of privacy and deprive them from their right to be presumed innocent before proven legally and factually guilty.
- A statue that authorizes such a search will not meet the requirements and standards of reasonableness established by the Canadian courts and cannot be justified in a free and democratic society.
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