Unlike fingerprints or photographs, DNA is personal. It carries information about who you are, where you come from, and even who your relatives are. In Alberta, the police cannot simply take your DNA whenever they want. There are strict rules governing when DNA can be collected, how it is obtained, and what happens to it afterwards.
Understanding the rules is essential, especially for people charged with serious offences. A DNA warrant or order can have long-term consequences that extend beyond a single case.
Why DNA Evidence is Treated Differently
Courts recognize that DNA evidence is unique. A DNA sample is not just evidence; it is a permanent biological identifier. Because of this, DNA collection is more than a routine identification measure. Powers of collection are limited by the Canadian Charter of Rights and Freedoms, and DNA can only be taken in circumstances authorized by law.
When Are Police Allowed to Take Your DNA?
Police cannot take your DNA simply because you are arrested or charged. In most cases, DNA can only be collected if a judge issues an order authorizing its collection under the Criminal Code of Canada. In everyday terms, this means that unless a judge has approved a DNA warrant or convicts you of an offence permitting a DNA collection order, police do not have authority to take your DNA.
DNA Orders Under the Criminal Code of Canada
DNA orders can arise after a conviction. The Criminal Code divides certain offences into primary designated offences and secondary designated offences.
With primary designated offences for serious crimes, a DNA order is mandatory upon conviction. For the secondary designated offences, the Crown must seek an order and persuade the judge that collecting a DNA sample is appropriate in the circumstances.
What Happens During DNA Collection?
If a DNA order is granted, the process is straightforward but strictly regulated.
DNA can be collected by:
- A cheek swab.
- A hair sample.
- In rare cases, a blood sample.
The collection is performed by trained personnel, often at a police station or at a remand centre or correctional facility. The sample is then sent to the National DNA Data Bank, where it may be compared against DNA collected from unsolved crimes.
What if You Refuse to Provide DNA?
Refusing to comply with a valid order is a criminal offence. Police are authorized to use reasonable force to collect the sample if necessary. However, this does not mean you lose your right to challenge an order. The proper place to contest an order is in court.
A lawyer can assess whether the warrant or order was properly issued, whether your rights were respected, and whether the order can be appealed or challenged.
How DNA is Stored and Used in Canada
Once collected, DNA is stored in the National DNA Data Bank. It can be retained for years and compared against future crime scene samples. This is one reason why DNA orders matter, even if your current case is resolved, your DNA may be used with future investigations, sometimes decades later.
How a Lawyer Can Challenge a DNA Order
DNA orders are not immune from legal scrutiny. A criminal defence lawyer can:
- Challenge whether a conviction properly qualified for a DNA order.
- Raise concerns related to the issuance of a DNA warrant.
- Appeal an improperly granted DNA warrant or order.
In some cases, negotiating a resolution to a lesser criminal charge can also affect whether a DNA order can even be imposed at all. Early legal advice is critical. Once DNA is collected and entered in the Data Bank, reversing the process becomes significantly more difficult.
Final Word
DNA evidence is powerful, and so is the intrusion on your privacy. The law recognizes a balance by placing strict limits on when and how DNA can be taken and used. If police seek your DNA, or if a DNA warrant has been granted, it does not end the analysis.
A criminal defence lawyer can help you to understand your rights, challenge improper warrants, and protect your privacy as much as the law allows. When it comes to DNA, an informed response matters.
