Tuesday, April 20, 2021
Colton Fehr (Simon Fraser University) has posted Familial DNA Searching and the Charter (In Robert Diab and Chris Hunt, eds. “Digital Privacy and the Charter of Rights and Freedoms” (Thompson Reuters, 2021 Forthcoming)) on SSRN. Here is the abstract:
Many criminal cases are unresolved despite police possessing evidence of the suspect’s deoxyribonucleic acid (DNA). Historically, searches for matches of DNA samples would be exhausted after running the suspect’s sample through the federal database collected pursuant to the DNA Identification Act. Although the Act permits officers to retrieve DNA samples from convicted criminals and search these databases for matches, it currently prohibits the tactic known as familial searching. In short, such searches tell police whether the suspect DNA sample is connected via familial status to anyone else in a DNA database. This can drastically narrow the pool of potential suspects, allowing police to resort to more traditional investigative methods to ultimately match the suspect’s DNA. Yet, with the expansion of DNA services to the public through websites such as Ancestory.com and 23andme, and open source DNA match sites such as GEDMatch and FamilyTreeDNA, the federal DNA database no longer provides the only means by which law enforcement may test DNA matches. Although data held by private entities will require prior judicial approval before disclosure will be permitted, open-source sites remain available to the public, including police. Following in the footsteps of police practice in the United States, Canadian police have recently begun to search open-source sites to provide leads in cold cases. This development prompts the question of whether and, if so, how such searches ought to be regulated by section 8 of the Canadian Charter of Rights and Freedoms.