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Appearance before the Senate Standing Committee on Legal and Constitutional Affairs on the Study of the provisions and operation of the DNA Identification Act

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April 22, 2009
Ottawa, Ontario

Statement by Chantal Bernier, Assistant Privacy Commissioner of Canada and Carman Baggaley, Strategic Privacy Advisor

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Good afternoon. My name is Chantal Bernier and I am an Assistant Privacy Commissioner of Canada.

As such, I also represent the Office of the Privacy Commissioner of Canada on the RCMP National DNA Data Bank Advisory Committee.

I am joined today by my colleague Carman Baggaley, a senior policy advisor. 
By way of introduction, I would like to put to you the general principles that guide us in defining our position on the conformity of the National DNA Data Bank with the fundamental right to privacy.

We must start from the premise that inclusion in a DNA databank entails, in principle, a deep intrusion of an individual’s privacy and that protection of the right to privacy, as has been stated on numerous occasions by the Supreme Court of Canada, deserves constitutional protection and goes to the essence of a democratic state.

This intrusion of privacy comes from the breadth and sensitivity a DNA sample contains: it constitutes a veritable life code, capable of revealing almost all facets of that person’s physical and mental characteristics.

That being said, it does not follow that the collection and retention of DNA information should be prohibited. Rather, it means that such collection and retention must respect the highest possible standards of fair balance between security and privacy.

The criteria for this fair balance are established in Canadian law, they determine the validity of measures in relation to DNA identification and they underpin our position on the subject at hand. So let me briefly summarize them:

  • The invasion of privacy must be strictly proportionate to the security need it serves.
  • That security need must be established in the context of a free and democratic society.
  • The information so gathered must be managed in a manner that ensures that the invasion of privacy never exceeds the established security need.

These criteria justify the existence of the current DNA Identification Act and form the basis of the management framework of the Act. In particular:

  • We consider that the DNA segments used in the National Data Bank are limited enough to protect the identity of the subjects.
  • We are satisfied with the separation between the DNA information and the personal information that is being collected.
  • We approve of the parameters that restrict access to the DNA Data Bank to a limited number of authorized individuals.
  •  We are satisfied with the legal framework that supports the DNA Data Bank and restricts the use of DNA information to law enforcement purposes.
  • And finally, we are satisfied with the governance regime of the DNA Data Bank, which legislatively establishes our participation to the National DNA Data Bank Advisory Committee.

I would now like to ask Mr Baggaley to make a few specific comments.

Opening Statement by Carman Baggaley, Office of the Privacy Commissioner of Canada

The Supreme Court of Canada has recognized on numerous occasions that privacy interests are worthy of protection under the charter and that the Privacy Act has quasi-constitutional status. The privacy of citizens goes to the essence of a democratic state, and it's essential for the well-being of individuals.  It also allows for the exercise of many of our other fundamental rights and freedoms.
The Supreme Court has also observed that DNA contains information that warrants special protection, since it's capable of revealing the most intimate details of a person's biological makeup. Thus, taking and retaining a DNA sample is considered a grave intrusion on a person's privacy that engages two aspects of privacy that are protected by the Canadian Charter of Rights and Freedoms. The first relates to the person, but the second arises in what's been called the informational context.
I also want to comment on what we view as a troubling shift away from the original  rationale for creating the  DNA data bank.  In the years since the DNA Identification Act was passed, the scope of the scheme has been steadily expanded, first by Bill C-36, the Anti-terrorism Act, then by Bill C-13 and most recently by C-18. With the addition of the terrorist offences and the Bill C-13 offences, the logic of the program seems to have shifted. Instead of primarily being a means of linking the DNA of offenders who've committed serious violent and/or sexual offences with DNA found at the crime scene of similar offences, the data bank is now being populated with the DNA of offenders who have committed a much wider range of offences.

We believe that, in principle, the number of offences for which DNA samples can be taken and included in the data bank should be kept to a minimum, and that the identification of offences for which such measures are to be allowed must be based on a clearly articulated and demonstrably justifiable rationale.

We're cognizant of the pressure this committee faces to recommend expanding the database to include more offences, to allow for familial searches, and to increase international information sharing. We caution against these measures, given their incursion on privacy interests, and quite frankly, their potential for undermining the overall viability of the DNA database.

Familial searching would allow the data bank to search for near matches, namely close blood relatives who are likely to have similar profiles. From a privacy perspective, familial searching is troubling because it turns family members into

“genetic informants” and it can result in the disclosure of very sensitive personal information about family members.  Familial searching turns people into suspects not because of what they have done, but simply because of to whom they are related.

For these reasons, as well as because of the privacy interests of the individuals affected, we oppose familial searches.

We are also opposed to expanding the Act to take DNA on arrest.  In addition to threatening the presumption of innocence, taking DNA on arrest has a disproportionate impact on the privacy and civil rights of ethnic and racial minorities. As we know, in Canada the arrest rate for visible minorities and aboriginals is several times higher than that for other Canadians, as is their incarceration rate.

The act allows for sharing of information from the DNA data bank on a case-by-case basis with foreign jurisdictions, provided there's an agreement in place with that jurisdiction in accordance with the Privacy Act. We caution against the routine comparing of Canadian DNA data bank profiles with international databases. Similarly, it would be inadvisable to link the Canadian database to a central system that would allow foreign states to routinely carry out searches.

This brings me to my third and final point: the international context.    

This Committee has heard from witnesses who think that Canada should follow the example of the England and the United States. We disagree.  If we look at England and Wales, anyone arrested on suspicion of a recordable offence must submit a DNA sample, the profile of which is then stored in the DNA database.  Taking DNA on arrest is also becoming more widespread in the United States. England’s policy of taking DNA on arrest and retaining this information was recently criticized in a  December 2008 decision of the European Court of Human Rights. The Court ruled that this practice was a violation of Article 8 of the European Convention on Human Rights, namely the right to respect for private and family life.

Importantly, the European court also cited a Supreme Court of Canada decision with approval and they determined that it was an illegal violation of a person's rights to keep a person's DNA sample when they had no prior conviction. They referred to the Canadian Supreme Court's decision in R. v. R.C. of 2005, where our Supreme Court stated that keeping someone's DNA records would have a disproportionately negative impact on their privacy compared to the benefit to criminal justice.

The influence of other jurisdictions weighed heavily in the European court's decision. Along with Canada, several member nations of the Council of Europe were cited in contrast to England's practices. This illustrates, in our view, the responsibility democratic countries have to one another when setting policy in a new and controversial area such as DNA sampling and retention.

To conclude, our Office supports the built-in safeguards against misuse of the National DNA data bank.  These include separating genetic and personal data, prohibiting unauthorized persons from accessing the data bank and penalizing those who attempt to do so.  We support the prohibition against using samples for research, and are of the view that use of the data bank should continue to be restricted to forensic identification purposes.

Thank you for your attention.

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