Appearance before the Standing Senate Committee on Legal and Constitutional Affairs on its study of Bill S-231, the Increasing the Identification of Criminals Through the Use of DNA Act

November 29, 2023

Ottawa, Ontario

Opening statement by Gregory Smolynec
Deputy Commissioner, Policy and Promotion (Office of the Privacy Commissioner of Canada)

(Check against delivery)

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Thank you, Mr. Chair and Members of the Committee for the invitation to appear on this Bill.

DNA is highly sensitive personal information. While DNA profiles can help prosecute violent offenders, solve long-standing cold cases and bring closure to victims and their families, their collection and retention must take into consideration the universal right to privacy.

The National DNA Databank serves a valuable law enforcement function. Since its inception, the National DNA Data Bank Advisory Committee has provided advice to the RCMP on the Databank’s operations. The Advisory Committee includes representatives from our Office as well as the policing, legal, scientific and academic communities. 

When a draft of Bill S-231 was reviewed by the Advisory Committee, we raised a number of concerns. I will discuss these in more detail today.

Our Office is particularly concerned about the increased scope of DNA collection that would be undertaken if the Bill receives royal assent.

As currently worded, nearly all Criminal Code offences, including non-violent offences, would trigger the collection of DNA samples from individuals. That is a significant departure from the model that was put in place in 1998.

Under the original DNA Identification Act, DNA samples were collected for only the most serious crimes. This is far more in keeping with the spirit of the Act, which includes a principles section that explicitly recognizes the role of privacy and the need for strong safeguards to protect personal information. 

Any expansion of the collection and use of DNA profiles must be shown to be necessary, proportionate, likely to be effective and minimally intrusive.

We have yet to see evidence that the benefits of the proposed expansion of DNA sampling – particularly from offenders who committed non-violent and less serious offences – would be proportionate to the privacy rights lost.

We have also raised concerns about new profiling uses in Bill S-231, specifically familial searching.

Essentially, the proposed changes would allow police to use DNA samples to identify near or partial matches in DNA datasets, as opposed to one-to-one matches. The goal is to allow law enforcement to find potential family members of suspects through hereditary markers, thereby narrowing their list of suspects, or opening new lines of inquiry not yet explored.

From a privacy perspective, familial searching is problematic because it turns people into potential suspects not because of what they have done, but simply because of biological relationships.

Shifting from one-to-one matching in this manner is also a concern for vulnerable groups, such as youth, or communities that may already be over-represented in prisons and law enforcement databases, such as visible minorities and Indigenous people.

Given the proposed expansion of the context in which it would be permissible to collect and use biological samples, we would also expect more rigorous accountability protections to be introduced, such as an ongoing review requirement.

Finally, we have concerns with respect to transparency. The Bill eliminates an existing requirement that peace officers file a report when they take a DNA sample.

These issues speak to oversight and accountability, which are both key principles of strong privacy protection.

Thank you for your time. I would be happy to elaborate on any of my comments and I welcome your questions.