Introduction

The introduction of DNA evidence has been one of the greatest advancements in the criminal justice system of the past century. The National DNA Databank of Canada was established through the DNA Identification Act of 1998, which requires that specific convicted offenders must submit DNA to be registered under the Convicted Offenders Index. Ultimately, the goals are to:

  • Connect crime scenes where there are no suspects
  • Identify offenders
  • Eliminate the innocent as suspects
  • Identify if a serial offender is involved in multiple crimes

The decision to create this resource was not taken lightly. There was great concern that this development would infringe on our rights to life, liberty and security of the person, as well as the right to be free from unreasonable search and seizure under the Charter. It was decided that the benefits of a DNA Databank outweighed the potential costs. It has since helped to release many convicted of offences they did not commit, confirm certain crimes and offenders, and identify those guilty of both old and new offences. This tool also functions as a method of deterrence for recidivism; those who know their DNA sample is saved in a databank are less likely to commit another serious offence.

What is DNA?

DNA, which stands for deoxyribonucleic acid, can be thought of as a person’s biological fingerprint. Analysts test the highly distinctive strands of DNA in a sample to determine its origin. Like fingerprints, no 2 people can have the same DNA, except for identical twins. It is estimated that the chance of this kind of evidence being wrong is 1 in 10 million. There are several means of obtaining DNA samples:

  • Blood: The most common sample tested. Blood can be tested in liquid form or from a stain, depending on the given material (jeans are not a good material to extract DNA from, cotton is usually better).
  • Hair: The sample needs to be taken from the root, and about ten hairs are usually required.
  • Semen: The most commonly found sample in cases of sexual assault, taken from bed sheets, a victim’s clothing, or general surfaces from the crime scene.
  • Saliva
  • Bone (Marrow)
  • Flesh
  • Urine
  • Teeth (Pulp)

Police must have a warrant to obtain a sample of a person’s DNA, and once the warrant is issued they must gather the evidence by 1) Plucking individual hairs, 2) Swabbing the inside of the mouth, and 3) Pricking the skin. Samples up to 5 years of age have been tested. DNA can provide a more definite and objective form of evidence than can often be provided by eyewitness identification or other such subjective means.

Designated Offences

For a sample of DNA to be entered in the National DNA Databank, the offender must be convicted of a designated offence as defined in section 487.04 of the Criminal Code of Canada. Primary Compulsory offences include: murder, attempted murder, living off of a minor involved in prostitution, manslaughter, assault with a weapon or causing bodily harm, sexual assault, kidnapping, robbery, and extortion. Primary presumptive offences are also included in designated offences and include: making, distributing or possessing child pornography, luring a child, infanticide, indecent assault against males and females, and hostage taking. Secondary offences listed in this section feature comparably lesser crimes, such as criminal threats. Finally, Generic Secondary Offences are any indictable offences for which the maximum punishment is imprisonment for five years or more.

DNA Identification Act

This Act outlined the provisions necessary for the creation of a national DNA databank in Canada. The first underlying principle of this database is that using DNA profiles will serve society because re-offenders will be easily detected, arrested, and convicted. Secondly, the data gathered may only be used for law enforcement. Thirdly, safeguards have to be placed on the information to protect the privacy of those individuals in the database. The document also states that DNA profiles can facilitate the early detection of offenders, which is in society’s best interests. These profiles are restricted to law enforcement purposes; any use of DNA outside criminal investigations is strictly prohibited.

There are two components of the national databank, a Crime Scene Index and a Convicted Offenders Index. The Convicted Offenders Index contains DNA profiles that are obtained from convicted offenders. The Crime Scene Index contains DNA profiles obtained from bodily substances that are found:

  1. at any place where a designated offence was committed;
  2. on or within the body of the victim of a designated offence;
  3. or anything worn or carried by the victim at the time when a designated offence was committed; or
  4. on or within the body of any person or thing or at any place associated with the commission of a designated offence.

Access to information under this act is restricted to any person that contributes to the proper operation and maintenance of the databank, along with those involved in training purposes as deemed fit by the Commissioner of the Royal Canadian Mounted Police. Samples gathered from victims of designated offences and those acquitted of charges are to be permanently removed, while samples from convicted offenders are to be kept indefinitely. This does not include young offenders whose records are expunged after a designated amount of time.

Cases

The bimonthly report by the National DNA Databank on October 25, 2010 indicated that 16 885 crime scenes have been matched with offenders, 2 347 forensic hits have been made linking crime scene to crime scene, and the majority of these offences have been break and enter offences. It is clear that the benefits of the databank have been considerable, but to fully appreciate the weight of this development we will look at specific cases in which the National DNA Databank has benefited justice.

In 1998, a teenage girl was brutally raped. More than forty men were suspected and their DNA compared with the DNA from the rape kit, none of which were a match. Years passed and the rape was declared a cold case. Then, DNA collected from an unrelated assault causing bodily harm came us as a match. The offender was a respected member of his community, a regular church-goer who raised money for local charities. It is safe to say that without the establishment of the National DNA Databank, the perpetrator of this heinous act would never have been questioned. He was sentenced to five years imprisonment.

In Montreal, the DNA databank helped to connect two rapes that occurred within each of the victims’ homes by a complete stranger. As the attacks were seemingly random, the police were unable to come up with any suspects. Then, when presiding over a completely unrelated arson case, a judge decided to order DNA to be taken from the arson offender. The decision to require a DNA sample was up to the judge’s discretion and not required by the DNA Identification Act; the judge was swayed by the offender’s long list of prior convictions. The DNA came up as a match for the two rape cases, in which the victims had in fact been randomly selected. The arson offender was convicted of two counts of sexual assault and sentenced to eighteen years imprisonment followed by ten years probation.

Conclusion

The creation of the National DNA Databank was a development as revolutionary, if not more, as the introduction of fingerprinting evidence so long ago. The benefits of the databank greatly outweigh the associated infringement of rights. Thousands of crimes that were likely to go unsolved have been closed thanks in part to the National Databank. Balancing new developments in science with existing law and the rights of Canadians is tricky, and any increase in surveillance is not taken lightly. Provisions directing who is put into the system and how the information can be used are vital to protect our privacy. The DNA Identification Act strikes a good balance between the public interest and individual rights and the DNA Databank is a great advancement in the criminal justice system.

Criminal Code, s 487.

DNA Databank, Public Safety Canada (http://www.publicsafety.gc.ca)

DNA Identification Act, 10th December 1998

National DNA Databank (http://www.nddb-bndg.org)