15 February

DNA and the Law

By: Byron Alvares

Many of my clients are required to provide DNA to the government under various circumstances. Why is this the case? What can DNA be used for? When can the government require my DNA? The following will explore what DNA is, and how it intersects with the criminal justice system in various ways, some times to my clients benefit, and sometimes to their detriment.

DNA is “the basic building block of life…[,] and has unique variations that can be used to establish identity”.[i] No two individuals (except for identical twins) have the same DNA.[ii] Further, DNA offers an effective comparative identification tool since there is no need to have samples of the same biological origin (e.g. a blood sample can be compared to a semen sample). Given the accuracy and utility of DNA, upon conviction for certain offences (listed in the code as primary or secondary designated offences), the Court can order the production of DNA evidence. Sections 487.04 to 487.091 of the Criminal Code govern the use of Forensic DNA analysis. [iii]

Admissibility of DNA Evidence

The probability of two people producing a matching DNA test result, although astronomical, can occur. Unfortunately, “many still view DNA evidence as proof-positive of guilt…”.[iv] Nonetheless, courts have allowed such evidence to be put to the jury if accompanied by a proper instruction.

Richard Overstall notes that the Court in R. v. Terceira[v] “took a…careful approach to DNA match evidence”.[vi] The Court conveyed that a DNA match, in and of itself, proved nothing more than that an individual cannot be excluded as a suspect. When a match is found, probability statistics are applied by an expert to determine its significance. In Terceira DNA experts were called to testify to the improbability of an individual producing a DNA match to the accused. The defence raised the issue of the “prosecutor’s fallacy” (equating the probability statistic with guilt) submitting that the prejudicial impact of the statistics exceed their probative value, should be excluded given that such numbers would overwhelm the jury. The Court held that the prosecutor’s fallacy could be guarded against by a proper jury instruction. In Tercira, it was found that the jury was not overwhelmed by the statistics. However, the holding left open the possibility that a judge in another case might decide differently.

When admitting such evidence, judges would be well advised to explicitly instruct the jury

“not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence”.[vii]

The charge can be of particular importance in relation to the weight that the jury should place upon DNA evidence when it is central to the case.  In R. v. Paul,[viii] the Crown relied heavily on DNA evidence in their case. The Court of appeal found that the trial judge’s instructions made the importance of the expert DNA evidence clear. The trial judge was not obliged to tell the jury that a doubt about one aspect of the testimony given by the expert would necessitate an acquittal. The Court ruled that the burden the Crown must meet to prove its case is on the evidence in its entirety, and not a single piece. Here, the DNA evidence did not stand alone on the issue of identity. Thus, the opinions provided by the expert did not have to meet the threshold of ‘beyond a reasonable doubt’. The weight of the expert’s opinion was for the jury to decide in the context of the other evidence. This decision concurred with the distinction drawn in Terceria between ‘scrutiny of a scientific technique’, and ‘assessment of an expert’s application of a methodology’. The Court noted that the former was within the purview of the trial judge (noting that DNA analysis is well accepted science), but the decision of the weight to be assigned to an expert’s conclusions is to be left to the jury.[ix]

Validity of the DNA Databank

DNA evidence has particularly useful for exonerating the wrongfully convicted such as with David Milgaard, Guy Paul Morin, and Thomas Sophonow to name a few.[x] As a result of the many salutary results from DNA, the Supreme Court has declared the DNA order regime constitutional[xi], which mandates (or allows) the court, to make DNA orders for designated offences per s. 487.04.[xii]

In R. v. Rodgers,[xiii] Charron J.A. (as she then was) deemed that s. 487.055 of the Criminal Code  (providing for orders to take DNA samples of certain identified offenders who were convicted and sentenced prior to the enactment of the provisions) constitutional. She analogized DNA to fingerprints used to help identify persons. While the samples taken without consent would be a seizure, they were found reasonable given that an individual subject to such an order has no reasonable expectation of privacy in their identity. The statutory framework alleviated any concern that the collection of DNA samples would offend bodily integrity beyond reproach. Furthermore, the ex parte nature of the proceedings met the dictates of procedural fairness afforded under s. 7. Also, the taking of DNA samples did not constitute a punishment within the meaning of s. 11.

The case of R. v. R.C.[xiv] is distinguishable from Rodgers. In this case the Supreme Court ruled that it is appropriate to consider the underlying principles and objectives of the Youth Criminal Justice Act when determining whether to make a DNA order against a young offender for a primary designated offence. The trial judge, therefore, has discretion to make such an order, where ordinarily it would be mandatory. Applying this logic, the case of R. v. C.S.[xv] held that the mandatory procedure was found to be unfair and unreasonable, violated the young persons’ right to protection against unreasonable search and seizure, breached the psychological security of young persons, and was inconsistent with the principles of fundamental justice.

Validity of DNA Warrants

DNA can be obtained by the state through a DNA warrant. In the case of R. v. S.A.B[xvi] police obtained a warrant to seize a blood sample for DNA analysis. The Court unanimously concluded that the provision allowing for this warrant was constitutional since it did not violate the policy behind the principle against self-incrimination given that the information obtained would be reliable. Furthermore, there are a number of legislative safeguards to prevent abuse by the state. DNA warrants are restricted to designated offences and require that a judge be satisfied that it is in the best interests of the administration of justice to issue the warrant. Tests on DNA samples are limited to those that may be useful in advancing the matching of the two samples.[xvii] In short, DNA warrants strike an appropriate balance between the public interest in effective criminal law enforcement for serious offences, and the rights of individuals. Finally, like in Rodgers, the Court also noted that the ex parte proceedings were constitutionally acceptable as a norm because of the risk that a suspect might take steps to frustrate the execution of a warrant.

Obtaining a DNA Sample Without A Warrant: Consent & Discarded Material

While obtaining a warrant is always preferable, sometimes, it may not be feasible for a variety of reasons. In such circumstances, officers can obtain a DNA sample through either 1) consent or 2) discarded DNA, without consent, that has been abandoned by the accused.

Firstly, there is a stringent test in place for the Crown to demonstrate consent.[xviii] In R. v. Wills, Doherty J.A. observed that the waiver standard is perhaps most important at the investigative stage, “where there is no neutral judicial arbiter or structured setting to control the process, and sometimes no counsel to advise the individual of his rights”.[xix] The Court stated that a waiver of one’s privacy interest exists only when Crown could establish on a balance of probabilities that there was implied or express consent; the giver had authority to give consent; consent was voluntary; there was awareness of the nature of the police conduct being consented to; awareness of the right to refuse to consent, and also of the potential consequences of providing consent.[xx]

Even if consent is established, it is important to note that the state cannot ask for bodily samples for one offence and use the sample for another. The Supreme Court in R. v. Borden,[xxi] made clear that the giver of consent must understand that the police are planning to use the product of the seizure for an investigation different from the one for which they are detained. However, if the police obtain a valid consent to seize evidence for one purpose, and only later discover that the evidence might be relevant to another investigation, this is distinguishable. In R. v. Arp[xxii] the accused was arrested for murder and consented to the seizure of hair samples. Subsequently, he came under investigation for a second murder. He refused to furnish DNA samples on consent at this time. Police obtained a warrant to seize the consent samples and used it to link the accused to the second murder.

Secondly, where consent is not provided, police have been allowed to obtain DNA from discarded items. R. v. Stillman[xxiii] is the leading case from the Supreme Court regarding the use of discarded items by a suspect for DNA analysis. The Court ruled that obtaining DNA from a discarded tissue of the accused, while he was in custody infringed s. 8. The Court notes that where accused not in custody discards an item, police can usually seize the item without any concern about consent.[xxiv] However, the situation is different where an accused is in custody. In such a case, the court will look at the facts to determine whether the accused abandoned an item relinquishing their privacy interest in it. Here, despite finding a s.8 violation, the tissue was nonetheless admitted in evidence given that the police did not force or request samples, and the charter violation was not found to be serious since it did not interfere with his bodily integrity or dignity.[xxv]

In R. v. Nguyen,[xxvi] the accused argued that the police use of trickery to obtain a DNA sample from him while he was in custody was unlawful after he refused to provide them with consent. Here police offered a stick of gum to the accused and Nguyen was free to decline. He took the gum, and was also free to dispose of it any way he saw fit. However, he decided to throw it in the garbage where the police retrieved it. The Court ruled that the actions of the police violated s.8 given that the accused did not relinquish his privacy interest in the gum. However, given that the trick was entirely passive, creating opportunity but nothing more, and did not interfere with his bodily integrity, it could be admitted, especially in light of the serious charges.[xxvii]

We see that even though police commit charter violations, under 24(2) analysis, such evidence is often admitted where the charges were serious, and the charter violations were less than flagrant. Aside from bad faith and systemic issues around the way police obtain DNA at times, it is important for defense counsel to vigorously impress upon the court in all circumstances, the highly intrusive nature of such violations for success on 24(2), in order to successfully exclude DNA evidence.

End Notes

[i] Vincenzo Rondinelli “Banking on DNA: Will Bill C-3 Usher in a New Era of Crime Fighting or Widen the Net of Social Control?” PDNA/RP-002 (March 1, 2000) at 1.

[ii] Jeffrey Modler, “Forensic DNA Analysis” (Lecture delivered to CML 3193 at the Faculty of Common Law, University of Ottawa, 30 November 2009 [unpublished].

[iii] Criminal Code, R.S.C.  1985, c. C-46, ss. 487.04 to 487.091. Note: s. 487.05, specifies when a warrant can be obtained for the purposes of forensic DNA analysis; and s. 487.051, mandates under what circumstances a court shall, or can, order the production of a DNA sample.

[iv] Supra note 1 at 18.

[v] (1998) 38 O.R. (3d) 175 (Ont. C.A.).

[vi] Richard Overstall “Mystical Infallibility: Using Probability Theorems to Sift DNA Evidence” (1999) 5 Appeal 28-37.

[vii] Supra note 5  at 28.

[viii] [2009] O.J. No. 2184 (Ont. C.A.)

[ix] Supra note 5 at 27.

[x] “Wrongfully convicted: high profile cases where courts got it wrong” CBC News (7 July 2008), online: <http://www.cbc.ca/news/background/wrongfullyconvicted/>.

[xi] R. v. F.(S.)(2000), 141 C.C.C. (3d) 225 (Ont. C.A.).

[xii] Supra note 3.

[xiii] [2006] 1 S.C.R. 554.

[xiv] [2005] S.C.J. No. 62.

[xv] [2009] O.J. No. 1115 (Ont. Ct. J.).

[xvi] [2003] 2 S.C.R. 678.

[xvii] Seth Weinstein, “Supreme Court Watch Top Court Rules DNA Search Provisions are Constitutional” For the Defence: Ontario Criminal Lawyers’ Association Newsletter, 24: 5 (September/October 2003) 40 at para3.

[xviii] Glen Luther “Consent Search and Reasonable Expectation of Privacy: Twin Barriers to the Reasonable Protection of Privacy in Canada, (2008) 41 U.B.C. L. Rev. 1 – 29, at para 5.

[xix] R. v. Wills, (1992) 7 O.R. (3d) 337 (Ont. C.A.).

[xx] Ibid at para. 69.

[xxi] [1994] 3 S.C.R. 145.

[xxii] [1998] S.C.J. No. 82.

[xxiii] [1997] S.C.J. No. 34.

[xxiv] See R. v. Patrick [2009] S.C.J. No. 17 for a discussion on abandonment.

[xxv] Several cases have used DNA from suspects not in custody, based on the logic in Stillman. In the case of R. v. Fash (1999) 244 A.R. 146 (Alta. C.A.), the Court did not find any Charter violation because the accused was not in custody, and was free to leave the police station after his interview and thus, could have prevented the police from taking possession of his cigarette butts. In R. v. Delaa [2006] A.J. No. 948 (Q.B.) DNA evidence was obtained when undercover officers asked the accused to participate in a chewing gum survey and he complied. In R. v. Love (1995), 102 C.C.C. (3d) 393 (Alta. C.A.), two undercover officers befriended an individual who had refused to provide blood samples in connection with a murder investigation. While on vacation together, the officers were able to obtain mucous samples from a discarded tissue in a hotel room garbage. The lists of cases are endless, and have included obtaining DNA from discarded items ranging from Pop cans, straws, combs, toothbrushes, unfinished food, cutlery, gloves, glasses, rings, watchstraps etc.; See John Burchill “Mr. Stillman, DNA and Discarded Evidence in Criminal Cases” (2008) 32 Man. L.J. 5 – 33.

[xxvi] (2002) 57 O.R. (3d) 589 (Ont. C.A.).

[xxvii] See R. v. Miller, [1991] O.J. No. 2010, 68 C.C.C. (3d) 517 (Ont. C.A.) at 527 and 530; R. v. Grandinetti [2003] A.J. No. 1330 (Alta. C.A.) at paras. 34-45; R. v. Wafid Delaa, [2009] A.J. No. 493 (Alta. C.A.).


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