Expanding Canada’s DNA Database

Senator Claude Carignan, the bill's sponsor, argues that Bill S-231 will enhance public safety and streamline criminal trials by facilitating faster DNA identification in police investigations and court proceedings.

Currently, DNA sampling is limited to those convicted of serious offenses like murder or sexual assault, but the bill would extend this to include secondary offenses such as fraud.

The current NDDB uses an FBI-formatted CODIS system, ensuring discreet identification without revealing other traits like race, health conditions or genetic predispositions.

Dr. Michael Crawford, a University of Windsor professor specializing in genetic privacy, has voiced concerns before a Senate committee about the bill's proposal to include familial searches.

If law enforcement obtains a DNA swab from a crime scene and there's no direct match in the database but discovers a partial overlap, it would suggest the sample likely comes from a relative of someone in the database. "This really goes against the presumption of innocence," says Crawford, adding that it undermines the presumption of innocence, violates privacy, and implies guilt by association, suggesting a hereditary link to criminality.

Crawford adds that many profiles in the databank come from minority communities, like Black or Indigenous groups, which are already overrepresented in the prison system. He also argues the bill would contravene the Genetic Non-Discrimination Act by turning family members into unwilling "genetic informants" because of DNA matches.

Crawford explains that the Supreme Court of Canada has ruled in cases that allow police to collect DNA from items like a Coke can or Kleenex found in your garbage without needing a warrant. Through such means, a person can be one's own unwitting informant, but if police suspect a family member, they could target that DNA. "There are big ethical problems there," he says.

Independent Senator Paula Simon has also raised concerns about the legislation at committee, particularly regarding individuals deemed not criminally responsible due to mental illness. She argues that collecting their DNA would violate their rights.

"To take someone's genetic information when they may not have capacity to consent—I took issue with that," Simon says, though DNA can be collected from people found not criminally responsible in certain cases.

What's more, says Tony Paisana, a partner with Peck and Company in Vancouver, there are significantly low recidivism rates among individuals declared not criminally responsible after receiving treatment.

"There isn't the same public policy justification for DNA collection from those declared not criminally responsible as there is for those deemed criminally responsible," Paisana says. Also, considering advancements in DNA technology, we can't predict the implications of keeping someone's DNA for decades into the future, he adds.

The Criminal Lawyers' Association, represented by Stephanie DiGiuseppe from Henein Hutchison Robitaille LLP in Toronto, expressed concerns at the committee about the collection of DNA from young offenders.

DiGiuseppe is worried about the long-term implications of DNA collection, especially for young offenders "who might be alive in 80 or 90 years." She adds that the justice system recognizes the potential for rehabilitation among young people, therefore DNA collection for them raises significant concerns.

Given the overrepresentation of Black and Indigenous people within the justice system, Simon worries about "the amplification of that effect."

"If the vast majority of the samples you're taking are from Indigenous people, then when you do family matching, you're going to get a disproportionate number of Indigenous hits because that's going to be the bulk of the database."

Simon says that this will accelerate the incarceration of Black and Indigenous people.

As a result, DiGiuseppe says that heavily policed and documented communities will bear the brunt of privacy loss concerning their genetic material. "We can't be over-confident that the freedoms we enjoy today will go on forever," she says, pointing to recent news stories of commercial DNA testing firms getting hacked to gather information on Ashkenazi Jews. "There are very sophisticated hackers out there who really seem to want access to this information for nefarious purposes," DiGiuseppe says.

Paisana further illustrates the dangers of racial profiling, citing a recent case in BC where DNA from a murdered 13-year-old was traced back to the Kurdish community. Police set up a DNA collection system using a tea "taste test" during Newroz celebrations, leading to a match. The defence unsuccessfully moved an abuse of process motion in court.

Simon has proposed amending Bill S-231 so that the changes do not apply to those who are found not criminally responsible. Another proposed amendment would eliminate family matching.These amendments were adopted at committee, but haven't been adopted by the Senate yet.

Crawford points out a common misconception driving the debate over DNA collection. There's a belief, perhaps influenced by CSI-type TV shows, that DNA is infallible evidence directly tying individuals to crime scenes, he explains. However, the reality is more complex. DNA can inadvertently transfer to a crime scene or person you haven't interacted with. "The result is that you will be the focus of intense scrutiny by police and that tunnel-vision is dangerous."

Crawford points to the growing police use of genetic genealogy sites. "It's a gray area," he notes, referring to the practice's self-regulation, which ought to raise concerns about its routine use without warrants in the future.

For his part, Paisana suggests judicial authorization is needed not just for familial searches but also for genealogy searches to ensure future privacy. "If there is reason to believe that the DNA databank has something relevant because your suspect is related to someone who has a DNA profile, and you want to match it up that way, go get a warrant," he says.

Finally, Crawford is concerned about the implications of evolving technology. He discusses the use of microarrays by commercial firms like Othram and Parabon, which can analyze vast amounts of genetic data. Crawford warns of potential privacy risks as individuals may unwittingly upload profiles across various platforms, exposing themselves to comprehensive analyses.

"It's a complicated, messy thing that nobody is really addressing at all the different levels, ranging from contamination of DNA samples, how far the technology is being pushed to use progressively more degraded DNA samples, and it gets really awkward."