DNA Upon Arrest: Is it the Next Tool for Law Enforcement?

The Conservative government is exploring the idea of arming the police with a new crime fighting tool: the collection of DNA samples upon arrest.  This proposal is not new to Canada. Many states in the United States, as well as countries such as England, already permit the seizure of DNA upon arrest.  In fact, in England, the state is permitted to retain the DNA sample notwithstanding the subsequent acquittal of the individual.

The Conservative government is in the exploratory stage only.  As no legislation has yet been tabled to pass this into law, it is difficult to comment as to whether any such legislation would pass constitutional muster.  However, based on current jurisprudence, some assumptions may be made.

The seizure of DNA upon arrest would be subject to scrutiny under s. 8 of the Charter.  In order to survive a challenge, the seizure would have to be authorized by law, the law itself would have to be reasonable and the manner in which the seizure was undertaken would have to be reasonable. It is the second criteria that may prove to be most problematic- would such a law be reasonable?  It can never be forgotten that the presumption of innocence is one of the cornerstones of our justice system.  Any such law would be permitting the seizure of DNA from a person presumed innocent of not only the offence for which he or she was being arrested for, but additionally, any other crime that the person’s DNA may eventually be linked to.   Moreover, if such legislation were to pass, although the police require reasonable and probable grounds to believe the person committed the offence for which they are arrested, there would be no requirement for reasonable and probable grounds to believe the person committed any other offence before the seizure of DNA is permitted.  An arrest on one offence will be sufficient to justify the seizure of DNA.

The other consideration is the lack of judicial oversight. Currently a court may order the seizure of DNA from a person convicted of certain enumerated offences. This process contains several constitutional safeguards: the presumption of innocence for the index offence is gone, the enumerated offences are viewed as serious enough to outweigh the privacy interest of the convicted, and there is judicial oversight.  It is difficult to conceive of how such safeguards could be built into a process permitting the police to seize DNA upon arrest. 

DNA can currently be seized upon the arrest of an individual with a warrant secured from a judicial official charged with ensuring the requisite grounds are present. The ability to collect DNA from all arrested persons will remove any judicial oversight. While one can see the benefits from a law enforcement perspective: less paperwork, no risk of a refusal, quicker identifications, and the ability to secure DNA from those who might not subsequently be convicted, it must not be forgotten that DNA contains a wealth of highly personal information unique to the individual. Such intrusions into personal privacy may not pass constitutional muster without any safeguards beyond the mere possession of grounds to arrest someone for an offence.