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Journal ArticleDOI

Innocence at Stake: Possibility of DNA Collection from Arrestees in Canada

Washim Ahmed1

AbstractFollowed 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.

Topics: Expectation of privacy (60%), Charter (57%), Probable cause (55%), Supreme court (53%), Constitutional law (51%)

Summary (1 min read)

Jump to: [INTRODUCTION:] and [CONCLUSION:]

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.
  • 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.

CONCLUSION:

  • 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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Innocence at Stake: Possibility of DNA Collection
from Arrestees in Canada
Washim Ahmed
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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 individuals 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].

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427 citations



Journal ArticleDOI
Abstract: In Maryland v. King, the Supreme Court ruled that a state statute mandating the warrantless DNA testing of all people arrested for violent felonies did not violate the Fourth Amendment of the Constitution. The 5-4 majority held that the government had a legitimate interest in the identification of arrestees, which overrode the arrestees’ reduced expectations of privacy. Despite the Court’s contention, arrestees are presumed innocent and thus have an expectation of privacy much closer to an ordinary citizen than a convicted offender. Although the Court determined that governments have a legitimate government interest in “identifying” the arrestees, the “identification” is really ordinary, investigative police work, which cannot overcome the violation of the arrestees’ reasonable expectations of privacy.The majority also found the DNA testing to be essentially the same as fingerprinting, ignoring that DNA testing is intrusive and not used for identification and can reveal much more information about a person than fingerprinting. Furthermore, the suspicionless DNA testing for the purposes of investigation is not exempt from the Warrant Clause under any other common exception, including the special needs, incident to arrest, or exigent circumstances doctrines. If the Court’s identification justification is sufficient, there will be no stopping the warrantless DNA testing of individuals any time they are asked for identification by law enforcement, such as during traffic stops. Allowing carte blanche DNA testing places an individual’s most intimate information at risk of being disseminated, whether by accidental or intentional governmental abuse.This Comment argues that states should hold that the warrantless DNA testing of arrestees is unconstitutional under their state constitutional provisions analogous to the Fourth Amendment. The doctrine of federalism allows a state to grant more protections to its citizens under the state constitution than those provided by the United States Constitution. By simply requiring law enforcement agencies to obtain a warrant supported by probable cause before obtaining the DNA of arrestees, state courts will ensure that the privacy rights of innocent-until-proven-guilty arrestees are maintained.

2 citations