“Swab First, Ask Questions Later”

Deoxyribonucleic acid (DNA): the wonder molecule.  It encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.

From genetic engineering to forensics to bioinformatics to nanotechnology, DNA is the defining characteristic of of human evolution and scientific progress. It is —for any fan of Law & Order of CSI — the stuff of which dreams of guilt or innocence are made of.

In his post, “The Slippery Swab (Update)” Scott Greenfield tackles the issue of DNA in a thought-provoking post on the U.S. Supreme Court decision in Maryland v. King, which approved the Maryland law permitting the taking of DNA from presumptively innocent defendants. Greenfield writes,

The decision in King, as made brutally clear by Nino, has some serious slippery slope potential. The concern is that seizing DNA under the Maryland law which only allows it for certain serious and violent crimes for example, will lead to a national database of DNA for everyone arrested for anything is the argument against the King decision today, and for the extension of the King decision on the next go-round. And the one after that.

It’s valuable to remember, however, when using analogies to make points that there are other games to play that may serve to stop the downward side. For example, the slide down the slippery slope ends when there is a conceptual ledge. If there is a rational basis to distinguish the current rationale from the feared extension, then it’s not as terrible a decision as some contend.

And that’s why King is awful.

As Scalia properly notes, DNA is collected from people convicted of crimes regardless of this decision, so they are by definition removed from the people affected by it. That leaves only the people who are arrested but not ultimately convicted as the people in play. The decision is otherwise meaningless.”

Only in America, you say? Pity.

Via Douglas Quan of Post Media News: Community safety vs. intrusion of privacy: Police seek power to collect DNA upon arrest

“Book ’em” could carry a whole new meaning at police stations in Canada if lawmakers are swayed to make a controversial change to the Criminal Code.

A growing number of law enforcement representatives are calling for new powers to collect DNA from criminal suspects at the time of their arrest, not just upon their conviction and sentence.

They say the law already allows authorities to get fingerprints and photographs when someone is taken into custody, so is it that much of a stretch to ask suspects to open their mouths for a DNA swab to see if they might be connected to other unsolved crimes?

“Community safety” and “identifying repeat offenders sooner” are law enforcement code for “swab first, and ask questions later.”

Move along. Nothing to see here. What’s the big deal, anyway? If you’ve got nothing to hide and have done nothing wrong, why wouldn’t you gladly provide a DNA sample when you’re arrested?

Wozney said police are not looking to get DNA samples from everyone who is arrested, just those who are arrested for more serious crimes, such as murder, kidnapping, robbery, arson and break-and-enter. And if a suspect ends up being found not guilty, the DNA sample would be destroyed.

A similar proposal has been endorsed by the Canadian Association of Chiefs of Police. Its members noted in a commentary in 2011 that under the current system, “an accused who has committed other crimes will go undetected for years while awaiting trial for his current arrest, leaving victims without answers and allowing an accused on bail to continue to commit similar offences, undeterred.”

Privacy, shmrivacy.

“Not all arrests result in charges, convictions. Consequently you end up taking a lot of samples. Now you have to think about how you dispose of them and ensure privacy is respected,” he said.

“People have to have confidence in the integrity and ability of the databank to ensure public safety but also ensure there are no breaches of privacy. The problem of taking those samples is it becomes a major issue to manage cases where they need to be destroyed and records need to be purged.”

The Harper government has so far been reluctant to jump on the idea.

Quan asks the right question:

And unlike fingerprints, DNA is more than just a method of identification, with genetic markers that can reveal a lot about a person’s personal and medical history. Who’s to say that, as technology advances, the government might not be tempted to use these samples for purposes beyond what they were intended for.

The legislative cudgel is the DNA Identification Act, S.C. 1998, c. 37. As noted in Final Report of the Standing Senate Committee on Legal and Constitutional Affairs (June 2010), chaired by the Honourable Joan Fraser, entitled: Public Protection, Privacy and the Search for Balance: A Statutory Review of the DNA Identification Act:

The DNA Identification Act constituted one of the two key components of Bill C-3, An  Act respecting DNA identification and to make consequential amendments to the Criminal Code  and other Acts.3 When it came into force on 30 June 2000,4 the DNA Identification Act created a  national databank to facilitate the forensic identification of individuals in relation to crimes that had been committed. It also established a legal framework to regulate the storage, and in some  cases, the collection and disposal of both deoxyribonucleic acid (DNA)5 profiles6 and the biological samples from which they had been derived. The legislative framework established by  the DNA Identification Act was designed to complement the system for DNA collection provided  by the Criminal Code (―the Code‖). 7 Amendments to the Criminal Code’s DNA collection  scheme, empowering courts to authorize the taking of DNA samples from individuals convicted  of certain ―designated offences‖8 outlined in the Code, constituted the second key component of  Bill C-3. [at p. 5, footnotes omitted]

Thus far, Canadian courts have resisted the temptation to throw Canadian citizens under the constitutional bus. In R. v. Borden, [1994] 3 S.C.R. 145 and R. v. Stillman, [1997] 1 S.C.R. 607, the Supreme Court of Canada ruled DNA evidence was inadmissible after bodily substances were seized by police without the accused’s consent or any prior judicial authorization. In the Stillman decision, the Court held that physical intrusion of forced removal of bodily substances was unjustifiable as a search incidental to an arrest and violated the accused‘s rights under sections 7 and 8 of the Charter.

Across the pond, the United Kingdom‘s system of DNA collection for criminal law purposes appears to be evolving, including considering changes to its blanket policy of indefinitely retaining the fingerprints, DNA samples and DNA profiles of all individuals arrested in England and Wales: See, the European Court of Human Rights decision in S. and Marper v. The United Kingdom, [2008] ECHR 1581, where the Court concluded that the U.K. government policy in this respect violated Article 8 of the European Convention of Human Rights, which protects the right to privacy. See also the various consultations and the U.K. government‘s proposals.

 Should Canadians be worried? Will the Harper government, with its “Law and Order” agenda get a bright idea and follow its American cousins?

Orphan Black. Image via BBC America.

Everything, and everyone, has a price. Your DNA, your privacy, your constitutional rights — all negotiable, fungible and saleable to the highest bidder. Your DNA may eventually become a bar code, not unlike the premise of the excellent dystopic science-fiction series, Orphan Black, featuring the highly talented Canadian actor, Tatiana Maslany deftly playing the role(s) of multiple clones.

It’s only a matter of time…

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