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Innocence at Stake: Possibility of DNA Collection
from Arrestees in Canada
Washim Ahmed
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Research Paper Series
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OSGOODE HALL LAW SCHOOL
LEGAL STUDIES RESEARCH PAPER SERIES
Research Paper No. 09
Vol. 10/ Issue. 02/ (2015)
Innocence at Stake: Possibility of DNA Collection
from Arrestees in Canada
Washim Ahmed
Editors:
Editor-in-Chief: Carys J. Craig (Associate Dean of Research & Institutional Relations and
Associate Professor, Osgoode Hall Law School, York University, Toronto)
Production Editor: James Singh (Osgoode Hall Law School, York University, Toronto)
This paper can be downloaded free of charge from:
http://ssrn.com/abstract=2543749
Further information and a collection of publications from the Osgoode Hall Law School Legal
Studies Research Paper Series can be found at:
http://papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=722488
Osgoode Legal Studies Research Paper No. 09
Vol. 10/ Issue. 02/ (2015)
Innocence at Stake: Possibility of DNA Collection from Arrestees in Canada
Washim Ahmed
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.
Keywords:
criminal law, DNA, collection, constitutional law, admin law, human rights, charter, s.8, s.11
(d), innocence, presumption, reasonable doubt, threats, maryland, king, us, supreme court,
biographical core information, privacy, reasonable expectation, search, seizure, justification,
fingerprint
Author(s):
Washim Ahmed
Osgoode Hall Law School
York University, Toronto
E: mdahmed@osgoode.yorku.ca
Innocence at Stake:
Possibility of DNA Collection from Arrestees in Canada
Md Washim Ahmed
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.
INTRODUCTION:
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.
1
Interestingly, it seems that
Canadian legislatures found this decision very inspiring as the Minister of Justice, Peter MacKay
expressed in an interview with the Globe and Mail that he and his Ministry are considering a
similar model for Canada. Historically, Canada has been under the influence of American legal
developments since the day the first Canadian Criminal Code was enacted.
2
Therefore, it will
not be surprising if Canada adopts a similar model despite the fact that some criminal defense
lawyers and civil liberty advocates already warned the governments about its potential
constitutional invalidity and its violation of individual’s rights and freedom.
3
While the Supreme Court of the United States finds collecting DNA from arrestees is
reasonable under the Fourth Amendment, which protects individuals from “unreasonable
searches and seizures”, it does not necessarily mean that it may be found reasonable under the
Canadian Charter of Rights and Freedom.
4
There are two provisions of the Charter that could be
infringed if such an approach is adopted - (i) right to be secure against unreasonable search or
seizure under s. 8; and (ii) presumptions of innocence under s.11 (d). It is important to note that
1
Maryland v King, [2013] US LEXIS 4165 at 3-28.
2
Polygamy was added to Canadian criminal code under the influence of American legislature in the first Canadian
Criminal Code in 1889 despite the fact that there was no polygamist in Canada on that time. See, Washim Ahmed,
“Criminalization of Polygamy in Canada: Historical, Legal and Sociological Analysis” (2014), 10 Osgoode Legal
Studies Research Paper Series 78, online: Social Science and Research Network
< http://ssrn.com/abstract=2508804>.es
3
Kim Mackrael, “Feds looks at plan to collect DNA from suspects upon arrestl, The Glove and Mail (2 October 2013) online:
http://www.theglobeandmail.com/news/politics/ottawa-looks-at-plan-to-collect-dna-from-suspects-upon-
arrest/article14652881/.
4
Canadian Charter of Rights and Freedoms, Part I of therConstitution Act, 1982, being Schedule B to the Canadag
Schedul anadag Schedule B to thebe referred as the Charter too].