Ricardo G. Federico In The News

Court raises bar for Crown in seizing DNA from juveniles


FEATURED: Globe & Mail | WRITTEN BY: KIRK MAKIN |   April 08, 2009

The DNA of Canadian youths convicted of crimes as minor as petty theft has been improperly retained by the federal DNA data bank and potentially sent to countries where the children’s biological identities could be abused.

In a scathing judgment, Judge Marion Cohen of the Ontario Court said that the existing DNA seizure law violates the youths’ constitutional right to privacy, and that numerous samples that ought to have been destroyed remain in data bank files.

“Under this legislation, a 12-year-old who grabs a baseball hat off a playmate and runs away with it can be found guilty of robbery and be required, pursuant to a mandatory order, to surrender his or her DNA to the state,” Judge Cohen said. “This mandatory procedure is unfair and unreasonable.”

Judge Cohen said there must be a change to the threshold for seizing DNA from young offenders. However, rather than strike down the current legal regime entirely, she rewrote it to force the Crown to prove in each case why a seizure is necessary.

The order will apply to 52 offences, ranging from sexual assault to murder, and is expected to dramatically reduce the number of DNA samples taken from young offenders.

Still, it was Judge Cohen’s findings about the integrity of the DNA data bank that has created shockwaves. She said that, even when the data bank destroys DNA profiles from young offenders, it keeps a portion of the original biological material that was seized.

“The remaining bodily substances – which contain the entire genetic makeup of the sample providers – are not destroyed,” she said. “They are maintained indefinitely in the National DNA Data Bank, in the same manner as the bodily substances and DNA profiles of adults – which are retained indefinitely.”

Toronto lawyer Ricardo Federico, a leading expert on DNA, said the ruling “is a serious, serious finding by a court. The constitutionality of the DNA data bank should be of utmost concern to everybody. This raises questions about the integrity of the entire DNA data bank.”

Mr. Federico noted that the data bank sends DNA samples to scores of countries upon request as part of a little-known Interpol exchange agreement.

“The possibility for error is great when it comes to countries that may have a corrupt or incompetent police force,” he said. “It’s unconscionable that a young person should be subjected to that. And, in my view, it’s unconstitutional – not only for youths, but for adults, too.

“The gatekeepers for foreign jurisdictions should not be the police,” Mr. Federico said. “Scientific mistakes happen all the time. And one mistake can lead a young person down the nightmare road of being falsely accused of a very serious crime.”

Mr. Federico said Parliament should consider imposing a moratorium on all DNA seizures until the matter can be investigated.

In her ruling, Judge Cohen said Isabelle Trudel, a senior data bank official, stated that only 535 of 21,169 DNA samples seized from youths have been destroyed because their retention period had ended – a suspiciously small number. The judge suggested that “these figures are evidence of a failure to comply with the provisions of the DNA Identification Act, and I so find.”

The four test cases before her included a 15-year-old youth who helped some friends steal a computer game from another youth; and a 17-year-old with no previous criminal record who kicked in a basement window and stole items from a home.

Spokesmen for the federal and Ontario governments declined to comment on the case yesterday.