Law enforcement pushes for power to swab for DNA on arrest

[Bruce Monkhouse]

The case was a clear example that there was no real need for DNA for identification in the matter for which the accused was arrested. Instead the DNA sample led to a hit to a completely unrelated rape case.

...and the loser loses.  Win-win......

I still fail to see the difference if they had run his fingerprints upon arrest and the same 'hit' had come back though........ ???

 

[GAP]

...and the loser loses.  Win-win......

I still fail to see the difference if they had run his fingerprints upon arrest and the same 'hit' had come back though........ ???

DNA is a wider catchment area, whereas fingerprints depend on them being able to lift a clear print with xx points of matching comparison.

Not really sure if I am for or against yet.

One concern would be your DNA being picked up in the course of the investigation where it implicated you, but your DNA being there was a completely innocent activity.

An example might be something as simple as riding in a vehicle that was involved in criminal activity a day or so later....your DNA might be there, but you had no involvement in the criminal activity..... :2c:

 

[cupper]

I think that's hell freezing over - since Scalia and Sotomayer were on the same side...

I'm not actually surprised that Scalia went the way he did. His history on protecting 4th amendment rights is well documented, and his view that the Constitution not being a living document would also come into play on this as well.

The fact that Thomas and Scalia came down on different sides of the issue is the scarier part.

And Breyer pulling to the right? That's a new one.

 

[Nemo888]

The problem is in the USA you can be "arrested" for driving around the wrong neighborhood.(happened to me) They can also ask you to produce ID and funds to prove you are not a vagrant if you walk late at night in some jurisdictions. In some neighborhoods the police feel like an occupying force. They are terrified and trigger happy. I don't think Canadians understand what it is like in some of the poorer US jurisdictions.

If you are poor police in the USA can run your DNA just for kicks now. Perhaps the TSA will want your DNA soon to get on a flight. It's for your safety. You wouldn't want to be  on a plane with a terrorist would you?

 

[Jarnhamar]

I still fail to see the difference if they had run his fingerprints upon arrest and the same 'hit' had come back though........ ???

Never thought of that.

 

[FJAG]

I still fail to see the difference if they had run his fingerprints upon arrest and the same 'hit' had come back though........ ???

You're not the only one Bruce.

At the risk of making this complex, I'll throw a couple of Supreme Court decisions, the Carter of Rights, and the Criminal Code into the fray.

As a starting point the Charter of Rights protects individuals (s8) against unreasonable search and seizure; and (11c) from being a witness in proceedings against himself (basically from self-incrimination).

In Canada, the right to photograph and fingerprint an arrested, but not yet convicted, person, comes from the "Identification of Criminals Act) - that Act was reviewed by the SCC in R v Beare in 1988 not long after the Charter was passed. I will attach that decision in a separate post as I'm having some file size issues with it. I have highlighted some key issues in it.

Note that the case provides very good reasons why fingerprinting is necessary before conviction, and I accept all of those as good valid reasons. I've got an RCMP officer as a son-in-law, so I'm basically a pro-cop kind of guy. The case also says that fingerprinting is a "virtually infallible tool" for identification purposes.

DNA is a newer process and we have established a very good DNA database which both protexts privacy, ensures that the samples cannot be used for an improper purpose and effectively provides for two streams for obtaing samples. This comes by way of the numerous and complex provisions of section 487 of the Criminal Code (as well as other but compliant legislation such as in the NDA).

The first string relates to individuals "convicted" of one or more of a long string of offences where the judge may order that a DNA sample be provided. Again the key here is - convicted.

The second string relates to individuals who have not yet been convicted but who have been charged or are under investigation for a specific crime. Here a judge may issue a warrant for DNA sample on "reasonable grounds" (see s487.055 for all the details)

Again, I have absolutely no problems with either of those systems. IMHO they provide the appropriate balance between someone who is convicted of an offence and who requires more stringent monitoring and someone who has not yet been convicted who deserves the safeguard of a judge who determines if the police have enough reason to "search" the individual.

I will include the R v Roberts decision as it gives a good overview of the existing DNA system.

Note that Roberts is about a person who was convicted of a sexual offence but before the new DNA laws came into effect. The police wanted his DNA in the database before he was released from jail and the SCC agreed that it was lawful to obtain a sample through the provisions set out in the CCC. On the result I agree with that outcome as well although you'll see that three judges did dissent on the procedure that was used.

My position is pretty straightforward. Fingerprinting (and photo ident) is an acceptable system for identifying an individual for all the purposes and reasons set out in Beare. More importantly, fingerprinting and photos are a sufficient system to meet all those objectives. More intrusion is not necessary for the IoCA purposes.

DNA clearly does provide an extra dimension that will help solve cases. Don't get me wrong. That's a laudable aim but it goes beyond the identification rationale that the court set in Beare for fingerprinting.

With DNA we should go back to square one and ask ourselves what is the balance of safeguards for the individual against unreasonable search or self-incrimination? IMHO the existing laws do that quite well.

Unfortunately I think I may be  :deadhorse: .

When I read the Roberts decision I tend to see that the majority has an infatuation with DNA and its "similarity" to fingerprinting.

That said, Roberts was a convicted felon, and the court was considering the case under today's laws. It might be that if s11c of the Charter were argued (it wasn't in Roberts) together with s8 in a case under the proposed provisions where the cops are given the authority to take warrantless DNA samples, that several members of the majority might jump ship.

We live in interesting times. I often think that we suffer from a lazy media that superficially sensationalizes everything that comes its way. The result is we all start to believe that we live on the edge Armageddon and have to give up more and more individual rights in order to preserve our personal security. The result is we too often knee-jerk when more deliberation ought to be given.

In the words of Senator Padmé: "So this is how liberty dies ... with thunderous applause."

:2c:

 

[FJAG]

:-[  Sorry folks the attachments are too large so I'll just direct you to the SCC cases (no highlighting I'm afraid)

R v Beare  http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/374/index.do

R v Rodgers  http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/6/index.do

 

[The Bread Guy]

Bump - back on the radar ....

The federal government is considering a move to collect DNA samples from suspects upon arrest for certain crimes, a significant expansion of current DNA databank laws that is raising concerns for criminal defence lawyers and civil-rights advocates.

In a recent interview, Peter MacKay told The Globe and Mail that he spoke with Public Safety Minister Steven Blaney over the summer about DNA databank legislation and how it can assist police with criminal investigations.

“I know there’s always privacy considerations in the backdrop to this and it has to be balanced in the bigger picture,” Mr. MacKay said. “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.”

Currently, Canadian law allows for DNA samples to be taken from individuals who are convicted of a range of offences, including murder, sexual assault and, in some cases, dangerous driving or drug trafficking. The information can be used to link a suspect to a crime scene or eliminate suspects where a profile in the databank does not match DNA collected at a crime scene.

“Right now we’re limited to taking it on conviction,” Mr. MacKay said. “It could be expanded to take on arrest, like a fingerprint.”

Mr. MacKay characterized his conversations about the idea as “preliminary discussions.” However, he said he has followed the issue closely since his time working as a Crown prosecutor. “I maintain that, you know, a genetic fingerprint is no different and could be used in my view as an investigative tool.”

A spokesman for Mr. Blaney wrote in an e-mail that the office does not usually comment on possible coming legislation ....

Globe & Mail, 2 Oct 13

 

[estoguy]

Bump - back on the radar ....Globe & Mail, 2 Oct 13

Is it just me, or is anyone else bothered by this?

 

[FJAG]

Yup. I've said my bit above.

:cheers:

 

[dapaterson]

Proof positive that a QC is not a sign of a well developed legal mind.

 

[Container]

Since the "realignment" of lab services....there is NO way that the influx in samples could be handled.

Although it is worth repeating that it isnt for every arrest. Only those "primary designated offences".

 

[Navy_Pete]

I personally don't see anything wrong with the current system of taking DNA during conviction or need to expand it outwards.  For numerous reasons already more eloquently addressed by others I am against this idea.

Also, would the cost of this not be enormous?  If every time they arrest someone (more recent article was fairly general but didn't restrict it to only certain crimes)  they are doing a DNA test, won't that just create a massive volume of samples to be processed?  Common sense and basic statistics dictate that a large number of samples would have more mixups in the processing of them all (ie 1% error for a hundred tests is 1 case, but in 10 000 tests is 100).  And would they not have to do it every time they arrest someone to verify against the database?

 

[Container]

its not on very arrest. No matter what the news says. It is ignorant at its best.

Everytime there is a hit on a database it has to be verified against a "new" sample. The "hit" just gives you the grounds to apply for a warrant to get a new sample.

Samples are attached to fingerprints- im not sure how a mix up would happen. It is more likely that it would take years for the samples to be entered.

 

[Navy_Pete]

I get that it's not every arrest.  Still it seems that it would be a huge uptick in samples taken that would require testing.  Which would have an associated cost, and very little gain to no apparent gain.

As far as mistakes go, just saying it's more likely you will have more false identifications based on DNA due to lab errors.  I guess at least if that means they have to go get an additional 'new' sample to verify that it isn't a false positive it's not bad, but still.

The bottom line is that DNA isn't a fingerprint.  A fingerprint doesn't give you any real identifying info about someone other then if it's a match or not, whereas DNA is your blueprint.  It's like comparing photo of an iphone with the full production drawings.  They are now starting to deny people insurance based on DNA tests showing they are predispositioned to some kind of genetic condition.  I don't trust that if they start taking it for arrests vice convictions, it won't open the door for larger scale use of DNA information from corporations.

 

[Container]

I think we're on the same page. I don't see huge benefits here- especially given that in my experience we don't actually use the DNA databank to its potential within the framework we already have. There are a tonne of offences that the judges could order DNA taken on now that they don't. I feel we would be better served if we got good mileage out of what we have now before we do an honest evaluation and tinker with it.

When I attended the forensics program at the Canadian police college I was shocked at how little bang for our buck we get from the DNA databank. The idea was in 15 years we would really start seeing results. It's been a few years now and I'm seeing a few hits here and there.

The way it works is. Sample goes in and get associated to a name/number. The whole of the DNA information isn't stored. Just certain segments of the information. I find blood or fluid at the scene- submits swab. The info I get back is name/dob. I can't charge based on that- what it gives me is the level of belief required to get a warrant for a DNA sample from that person.

I get that new sample, compare it to the scene sample. That gives me the grounds for a charge- not the databank. This is to ensure that in the tiny chance that their is a mistake- it's caught before charges.

 

[Navy_Pete]

Thanks for the explanation, that makes more sense.