Canadian Lawyer

48 N O V E M B E R / D E C E M B E R 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m booking for integration following live scan fingerprint enrollment of an arrestee," Hess explained, adding any implementation must follow changes in the legislation. In Canada, the potential use of rapid DNA at police stations will require funda- mental changes in the law. "The way things work right now is that in Canada, when people are charged with a crime, they can be forced under a DNA warrant to give a sample, and when they're convicted of a crime, they can be forced to give a sample for upload to the databank," says Hageman. Individuals cannot be forced to give DNA samples on arrest under Canadian law. "Whether or not that changes in Canada, that's entirely in the lawyers' and the polit- icians' court," she adds. Criminal lawyer Ricardo Federico pre- dicts that kind of change in law is next to impossible. "There's nothing rapid about Canadian DNA evidence," he says. "It's illegal to do this. It's not going to happen here; it's not going to change. It would be unconstitutional in Canada to do that. That's my view." James Lockyer, a criminal lawyer and founding director of the Association in Defence of the Wrongly Convicted, says collecting DNA samples from arrested indi- viduals would constitute illegal search and seizure and violate the Canadian Charter of Rights and Freedoms. Unlike the taking of fingerprints, which is not considered a violation of a person's right to their body or identity, the revealing power of DNA samples are an invasion of an individual's right to their person and pri- vacy, says Lockyer. "It's like a person doesn't want their medical record available to the police. It just seems to me that the power of the state should always have limitations and one of them should be that your DNA is yours except through proper process." Lockyer also worries that if police have the power to collect DNA samples from arrestees, they'd be more likely to arrest people they have no real case against just to eliminate them as suspects. "It'd be very tempting to do that," he says. There's no denying, however, that a larg- er DNA databank would help avoid wrong- ful convictions or even exonerate those who have been wrongfully convicted, says Lockyer. But "is that sort of rather vague prospect enough to justify DNA banks include just arrested persons? Not in my view, but it's a policy decision." The rapid DNA technology isn't meant for use at police stations alone. The idea is also that investigators can use the tool at crime scenes and mobile laboratories. Samples collected on the go may be added to the national DNA databank and possibly be linked to other crimes. "If somebody is a hit on a number of open break-and-enters or open sexual assaults, then, of course, that has amazing repercussions for investiga- tors," says Hageman. For its part, the RCMP says the use of rapid DNA at crime scenes is years away. "Rapid DNA technology is currently limit- ed in its ability to adequately analyze crime scene samples, which may be contami- nated, degraded, or containing mixtures of two or more donors, limiting its usefulness in analyzing evidence collected at crime scenes," said Sgt. Harold Pfleiderer, media relations officer for the RCMP, in an e-mail to Canadian Lawyer. "As with any new forensic technology, extensive research, val- L E G A L R E P O RT \ C R I M I N A L & F O R E N S I C S New Edition Drug Offences in Canada, Fourth Edition Bruce A. MacFarlane, Q.C., Robert J. Frater, Q.C., and Croft Michaelson, Q.C. 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