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

26 Pages Posted: 2 Jan 2015 Last revised: 16 Apr 2015

Date Written: December 29, 2014

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

Suggested Citation

Ahmed, Washim, Innocence at Stake: Possibility of DNA Collection from Arrestees in Canada (December 29, 2014). Osgoode Legal Studies Research Paper No. 09/2015, Available at SSRN: https://ssrn.com/abstract=2543749 or http://dx.doi.org/10.2139/ssrn.2543749

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