Bill C-104: Revolutionizing Criminal Investigations or Infringing on Charter Rights?

DANIELA BASSAN

ABSTRACT

DNA testing has changed the landscape of criminal investigations. Essentially, DNA testing is used to "genetically" identify perpetrators of crimes by comparing bodily substances retrieved from a crime scene with bodily substances collected from individual suspects. Bill C-104 is the government's legislative response to DNA testing and allows a warrant to be issued for the non-consensual removal of DNA material namely blood, hair, and epithelial cells. This article considers both the scientific and legal problems associated with the new statutory regime. The argument is made that Bill C-104 seeks to use DNA technology in a manner that violates a person's Charter rights. In particular, the removal of bodily substances without a person's consent violates a person's right to be secure against unreasonable search or seizure under s. 8 of the Charter. Moreover, the legislation cannot be justified under s. 1 of the Charter. Alternatively, should Bill C-104 itself survive Charter scrutiny, the argument is made that on a case-by-case basis the manner in which a DNA warrant is executed may prove unreasonable under s. 8. In those cases, the DNA evidence seized by police may be excluded under s. 24(2) of the Charter.

------------------------------------------------------------------------------------------

Citation: (1996) 54(2) U.T. Fac. L. Rev. 246.
Copyright © 1996. University of Toronto Faculty of Law Review.
All rights reserved.