LIMITS TO COLLECTING THE DNA OF CRIMINALS

As a crime-solving tool, DNA technology is extraordinarily powerful. So
powerful, indeed, that the Canadian Association of Police Chiefs has been
lobbying Parliament to widen the laws governing the collection and use of
convicted criminals' DNA samples.

The chiefs' proposals should be viewed with great caution. Up to a point,
their suggestion that the "intake" pool of such samples be enlarged makes
sense. However, allowing the DNA laws to apply retroactively, as they also
urge, might well run afoul of the Constitution. And rightly so.

DNA's reputation grows every year. In the United States, at least a dozen
men convicted of murder have been freed from death row after DNA tests
proved their innocence. In Canada, David Milgaard and Guy Paul Morin are
the two best-known individuals shown through DNA to have been wrongly
convicted. But in courts and police labs everywhere, the efficacy of DNA is
hailed.

That's because deoxyribonucleic acid, to give DNA its full name, is close
to foolproof as a means of identification, when properly applied. DNA is
the principal molecule that carries genetic information in most organisms.
And just as each person's fingerprints are different, so too is each
individual's DNA, discernible in everything from hair and saliva to semen
and skin scrapings. It is not impossible for two people to share the same
DNA profile, but the odds against it are usually several million to one.

Impressed by such science, Parliament approved a law that took effect in
January, 2000, requiring a DNA sample of anyone convicted of murder,
manslaughter, kidnapping, sexual assault and several other violent crimes.
Stored in Ottawa's DNA bank, the fast-accumulating data have been of little
benefit so far because most of the donors remain in prison. But there is no
reason to doubt the information will aid future investigations.

And the data would be more useful still, Toronto Police Chief Julian
Fantino argued last week, if they encompassed domestic assault, prowling,
child pornography, indecent acts, burglary and drug offences.

Whoa. Drug offences? Should the marijuana dealer caught selling a few
ounces have his DNA placed on file forever? Then why not the shoplifter,
the petty fraud artist, the prostitute and everyone else convicted under
the Criminal Code? The best answer was heard during the debate that
accompanied the original legislation. The broad intent was, and should
remain, to help catch the repeat violent offender.

Agreed, that involves drawing a somewhat uncertain line. The endless
balancing act between the rights of the individual and those of society
often does. It seems fair to say that the category of crimes to which the
DNA laws apply could be expanded. It is up for debate whether that category
should include burglary, given the damage and trauma that commonly result.
Stalkers and flashers also exhibit behaviour that is, if not violent, often
extremely frightening. So does the possessor of child pornography. All
these grey areas may bear re-examination.

But any widening of the current law should be done with great care. A DNA
sample may seem little different from a set of fingerprints in that both
technologies share the same purpose. As an identification tool, however,
DNA is vastly superior. And with that efficiency comes greater risk. More
worrying than the cost and difficulty of administering a DNA bank whose
sweep is large rather than highly selective is the long-term scope for the
data to be abused, whether through lax controls or state misapplication.

Still more troublesome is the police chiefs' parallel suggestion that those
convicted of serious crimes before the law took effect be required through
legislation to supply samples to the DNA bank. For the detective, such a
step could be a godsend. Extract the DNA from thousands of convicted
killers and sex offenders and innumerable "cold cases" might well be
solved. And in rare cases, mostly involving the very worst sex attackers,
current law does allow such samples to be taken.

But blanket retroactivity for the DNA law would encounter the same
difficulty as any retroactive law. Constitutionally, it probably wouldn't
fly. A core principle of Western jurisprudence holds that criminals --
murderers and rapists included -- must be punished under the law in effect
when the offence occurred.

Any enforced loss of civil liberties clearly constitutes a punishment. Once
again, it is society's bad apples who test us when we insist that such
principles apply evenly.