Criminal Code of Canada - section 487.071(2) - DNA profile in data bank

section 487.071(2)

INTRODUCTION AND BRIEF DESCRIPTION

If a persons DNA profile is in the national DNA data bank, no bodily substances should be taken and confirmation of this fact should be written on the order or authorization.

SECTION WORDING

487.071(2) If the person’s DNA profile is in the convicted offenders index of the national DNA data bank, the peace officer or person acting under their direction shall not take any bodily substances from the person but shall (a) confirm in writing on the order or authorization that he or she has been advised that the person’s DNA profile is in the DNA data bank; and (b) transmit a copy of the order or authorization containing that confirmation and any other information prescribed by regulations made under the DNA Identification Act to the Commissioner of the Royal Canadian Mounted Police.

EXPLANATION

Section 487.071(2) of the Criminal Code of Canada outlines the procedures to be followed if the DNA profile of a person subject to an order or authorization is already present in the convicted offenders index of the national DNA data bank. According to the section, the peace officer or authorized person cannot take any additional bodily substances from the individual. Instead, they need to confirm in writing on the order or authorization that the person's DNA profile is already present in the DNA database. The section reinforces the importance of privacy laws and recognizes the need for protecting personal information and DNA data. It is the responsibility of the peace officer or authorized person to inform the individual about the existing status of their DNA profile in the database. By doing so, they encourage accountability and transparency and maintain the integrity of the DNA Identification Act. Furthermore, the section emphasizes the significance of the national DNA data bank and the role it plays in criminal investigations. The Commissioner of the Royal Canadian Mounted Police is notified of the confirmation and any other relevant information as prescribed by regulations. This information can be used to ensure accuracy and completeness of the national DNA database, which in turn can aid in the identification and investigation of criminal activities. Overall, Section 487.071(2) highlights the importance of responsible DNA data management by law enforcement authorities. It emphasizes the need for effective communication and transparency between the authorities and the individuals involved in investigations. The section reinforces the principle of privacy laws and ensures that the collection, storage, and use of DNA data is carried out in a responsible and ethical manner.

COMMENTARY

Section 487.071(2) of the Criminal Code of Canada highlights the importance of DNA profiling in the criminal justice system. This section prohibits the collection of bodily substances from a person whose DNA profile is already in the convicted offenders index of the national DNA data bank. Instead, the peace officer or authorized person must confirm in writing that the person's DNA profile is already in the database and transmit a copy of the order or authorization to the Commissioner of the Royal Canadian Mounted Police, including any other prescribed information. The national DNA data bank was established in Canada in 2000 with the enactment of the DNA Identification Act. The primary aim of the DNA data bank is to assist law enforcement agencies in identifying suspects and solving crimes through the analysis of DNA samples collected from crime scenes and convicted offenders. The data bank contains two separate indexes: the convicted offenders index and the crime scene index. The convicted offenders index contains DNA profiles obtained from individuals who have been found guilty of designated offences, including serious personal injury offences, sexual offences, and certain drug offenses. Meanwhile, the crime scene index contains DNA profiles obtained from biological material recovered from crime scenes. Section 487.071(2) of the Criminal Code of Canada is important because it ensures that the privacy rights of individuals whose DNA profiles are already in the convicted offenders index are protected. It prevents the duplication of DNA sample collection and saves time and resources for both police and individuals alike. By confirming that the person's DNA profile is already in the database, the likelihood of error and the possibility of invasion of privacy can be minimized. At the same time, this section helps maintain the integrity of the national DNA data bank by ensuring that it only contains accurate and relevant information. It prohibits the collection of unnecessary bodily substances, which can be time-consuming and costly, and it ensures that the data bank is updated regularly with the latest information. However, there are concerns about the potential misuse of DNA data by police and other law enforcement agencies. Critics argue that the sheer size and scope of the national DNA data bank poses a significant risk to privacy rights. There are concerns that the increasing use of DNA evidence in criminal cases could lead to the wrongful conviction of innocent individuals or the targeting of vulnerable populations. In conclusion, Section 487.071(2) of the Criminal Code of Canada is a critical provision that protects an individual's privacy rights while ensuring the accuracy and efficiency of the national DNA database. It allows law enforcement agencies to use DNA evidence effectively without violating the rights of individuals whose DNA profiles are already in the database. Nevertheless, the responsible use of such technology must remain a top priority and matters related to privacy must be given due consideration.

STRATEGY

Section 487.071(2) of the Criminal Code of Canada poses several strategic considerations for law enforcement agencies, prosecutors, defense attorneys, and accused individuals. Since this provision restricts the collection of bodily substances from a convicted offender whose DNA profile is already in the national DNA data bank, agencies and stakeholders must navigate several legal, ethical, and practical challenges to ensure compliance with the law while respecting the rights of accused persons and victims. One of the main strategic considerations when dealing with section 487.071(2) is the interpretation and application of the law by courts and judges. Although the provision seems clear on its face, courts may still construe it narrowly or broadly depending on the facts of the case, the arguments of the parties, and the precedents cited. For example, in R v Tamber, [2009] OJ No 4738, the Ontario Court of Justice held that the police were not authorized to take a hair sample from the accused person under section 487.071(2) since his DNA profile was already in the data bank, and his hair did not fit the definition of bodily substances" under the Criminal Code. This decision shows that even seemingly elementary terms like bodily substances" can be subject to debate and interpretation in court. Another strategic consideration is the defense attorney's role in challenging the admissibility and reliability of DNA evidence obtained through lawful means. Even if the police follow section 487.071(2) and do not take bodily substances from the accused person, they may still use other evidence, such as fingerprints, eyewitness testimony, or surveillance footage, to link the accused to the crime scene. Defense attorneys must be vigilant in scrutinizing every step of the police investigation and forensic analysis to ensure that the evidence meets the requirements of relevance, materiality, and probative value under the Charter of Rights and Freedoms. A third strategic consideration is the ethical and privacy implications of DNA evidence and its potential for misuse or abuse by state actors or private parties. DNA samples and profiles, unlike other forms of evidence, reveal sensitive personal information about an individual's health, ancestry, and familial relationships. As such, they require special safeguards and protocols to preserve the confidentiality and security of the data. Law enforcement agencies must balance the public interest in solving crimes with the individual right to privacy and the risk of genetic discrimination or stigmatization. To address these concerns, Parliament has enacted several statutes, including the Privacy Act, the Personal Information Protection and Electronic Documents Act, and the Genetic Non-Discrimination Act. These laws impose strict rules on the use, storage, and sharing of DNA information and provide remedies for breaches. Some strategies that law enforcement agencies and other stakeholders could employ when dealing with section 487.071(2) include: 1. Developing standard operating procedures and training programs for officers involved in DNA collection and analysis to ensure compliance with the Criminal Code and other relevant laws and regulations. 2. Establishing clear communication and notification protocols to inform accused persons of their rights and obligations under the law and to provide them with the opportunity to challenge the legality and accuracy of the DNA evidence. 3. Enhancing the quality and reliability of forensic analysis through accreditation, proficiency testing, and oversight by independent bodies such as the Canadian Society of Forensic Science. 4. Educating the public and stakeholders about the benefits and risks of DNA evidence and the legal and ethical frameworks that govern its use. 5. Conducting research and evaluation studies to assess the effectiveness and efficiency of DNA databases in solving crimes and preventing recidivism and to identify gaps or challenges that require further attention. In conclusion, section 487.071(2) of the Criminal Code of Canada poses several strategic considerations for law enforcement agencies and other stakeholders involved in the criminal justice system. By being aware of the legal, ethical, and practical challenges and opportunities of DNA evidence, they can develop and implement strategies that promote the rule of law, protect individual rights and freedoms, and enhance public safety.