Q:I read that if you’ve been involved in criminal activity, you sometimes have to give a DNA sample. When and why do you have to do this?
A:The Criminal Code of Canada provides that if you are found guilty of certain offences, you must provide a sampling of your DNA.
In 2008, Parliament passed a law making DNA testing automatic for convictions for crimes involving injury to the person and sex crimes.
At the same time, Parliament enlarged the list of other offences for which a judge could order samples. The enlarged list included all offences under the Criminal Code (as well as some crimes under the Controlled Drugs and Substances Act) that carry a maximum jail sentence of five or more years.
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Currently, there is a wide range of crimes that are called primary designated offences, which result in an automatic DNA order. They include murder and manslaughter (and attempts), firearms and explosives offences, most assaults and sexual assaults, kidnapping, robbery, extortion, terrorism and child pornography.
Some of those offences make less sense. They include intimidation of a witness or journalist and participation in a criminal organization. Critics argue it is more difficult to see how DNA would assist with that type of crime.
A Senate committee recently recommended that the number of automatic offences for which convictions that a DNA sample should be taken from every person charged with a criminal offence.
That seems to infringe upon the presumption that every person is innocent unless found guilty in a court of law. While mayor of New York, Rudolph Giuliani suggested DNA should be taken from every baby born in the city. Some people were concerned with the potential for abuse.
You should also bear in mind that the courts can order a DNA warrant before the conviction of an individual, or even before he is charged, to assist the police with an investigation.
Armed with such a warrant, a peace officer can take samples (by force if required) of hair, blood or a mouth swab to obtain DNA. You should obtain independent legal advice when faced with this warrant.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
